onaJ 
ity 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


RECONSTRUCTION. 


CLAIMS   OF   THE   INHABITANTS   OF   THE  STATES  ENGAGED 
IN   THE   REBELLION   TO   RESTORATION   OF  POLITI- 
CAL   RIGHTS    AND    PRIVILEGES    UNDER 
THE    CONSTITUTION. 


Br  CHARLES   G.  LORING. 


BOSTON: 

LITTLE,  BROWN,  AND    COMPANY. 
1866. 


CAMBRIDGE: 
PRESS  OP  JOHN  WILSON  AND  SON. 


CONTENTS. 


PART    FIRST. 
CHAPTER  I. 

PAGE. 

STATE  RIGHTS  —  PRELIMINARY  HISTORY  OF 1 

CHAPTER   II. 

THE  CONSTITUTION  —  FORMATION  OF,  AND  INDIVIDUAL  AND  STATE 
RIGHTS  AND  DUTIES  UNDER  IT 18 

CHAPTER  III. 

STATES  UNDER  THE  CONSTITUTION  —  RIGHTS  OF  REPRESENTATION 
IN   CONGRESS  —  CONDITIONS  OF  —  EFFECTS  OF   STATE  REBEL-     . 
LION 27 

CHAPTER   IV. 

POWERS  AND  DUTIES  OF  GENERAL  GOVERNMENT  IN  RELATION  TO 
THE  STATES  IN  REBELLION,  AND  WHEN  LEFT  BY  THE  REBEL- 
LION WITHOUT  ORGANIZED  GOVERNMENTS  UNDER  THE  CONSTI- 
TUTION, AND  TO  RESTORATION  OF  THEIR  POLITICAL  PRIVILEGES 
UNDER  IT. — RIGHTS  CONSEQUENT  UPON  WAR 40 

CHAPTER   V. 

POLITICAL  RIGHTS  AND  PRIVILEGES  OF  REBEL  STATES  FORFEITED 
AND  LOST. — RESTORATION  MUST  BE  BY  ACT  OF  GOVERNMENT.— 
LAW  OF  SELF-PRESERVATION  ,  53 


448059 


IV  CONTENTS. 


PART    SECOND. 


CHAPTER  I. 

PAGE. 

REPLY  TO  THEORIES  AND  ARGUMENTS  ADDUCED  IN  SUPPORT  OF 
THE  PRESIDENT'S  POLICY.  —  ALLEGED  DESTRUCTION  OF  STATES 
BY  IMPOSING  CONDITIONS  OF  RESTORATION 69 


CHAPTER  II. 

ASSERTED  CONSTITUTIONAL  LIMITS  TO  POWERS  OF  CONGRESS. — 
THEORY  THAT  THE  PEOPLE  OF  THE  LATE  REBEL  STATES  ARE 
ENTITLED  TO  COMPLETE  IMMEDIATE  RESTORATION  .  ,  81 


CHAPTER  III. 

RIGHT  OF  GOVERNMENT  AS  CONQUEROR  TO  DICTATE  TERMS  OF 
PEACE 91 


CHAPTER   IV. 

ASSERTED  POWERS  OF  THE  PRESIDENT  AS  THE  EXECUTIVE  HEAD 
OF  THE  GOVERNMENT,  AND  AS  COMMANDER-IN-CHIEF,  TO  DE- 
CIDE UPON  THE  RIGHTS  OF  THE  REBEL  STATES  TO  IMMEDIATE 
RESTORATION .  109 


RECONSTRUCTION. 


PAET    FIKST. 


CHAPTER   I. 

STATE  RIGHTS  — PRELIMINARY  HISTORY  OF. 

THE  question  of  the  day  with  the  people  of  the 
United  States  —  and  none  of  graver  moment  ever  agi- 
tated the  public  mind  —  is  that  concerning  the  claims 
of  the  inhabitants  of  the  several  States,  recently  in 
open  rebellion  against  the  national  Government,  to  be 
re-admitted  to  the  exercise  of  the  personal  and  corpo: 
rate  political  powers  and  franchises  which  they  enjoyed 
under  the  Constitution  before  they  made  war  upon 
the  Union  in  order  to  accomplish  its  destruction. 

That,  by  reason  of  that  rebellion  and  its  suppression, 
those  who  were  parties  to  it  forfeited  their  rights,  as 
individual  citizens,  to  property,  liberty,  and  life,  of 
which  they  could  at  any  time  be  deprived  by  due 
process  of  law,  and  to  which  they  could  be  restored 
only  by  the  pardon  of  the  Government,  no  one  who 
does  not  justify  the  rebellion  denies.  The  only  con- 
troversy is,  whether  citizens,  thus  under  the  ban  of 

i 


2  RECONSTRUCTION. 

the  law,  became,  upon  the  laying-down  of  their  arms 
and  profession  of  submission  to  the  national  Govern- 
ment, at  once  restored  to  their  former  rights,  as 
inhabitants  of  their  respective  States,  to  immediate 
participation  in  the  councils  of  the  nation  and  to  im- 
mediate agency  in  the  administration  of  the  national 
Government. 

/  The  practical  issue  may  be  thus  stated:  whether 
it  is  competent  for  the  national  Government,  as  now 
administered,  to  impose  upon  the  inhabitants  of  the 
several  States  lately  in  open  rebellion  against  it,  such 
terms  and  conditions  of  re-admission  to  the  exercise 
of  their  former  political  powers,  in  the  adminis- 
tration of  the  national  sovereignty,  as  it  may  judge 
to  be  essential  for  its  future  security;  or  whether, 
having  laid  down  their  arms  and  professed  a  readi- 
ness to  obey  the  laws,  those  inhabitants  are  entitled 
to  an  immediate  recognition  of  those  powers  as 
matter  of  right,  and  to  be  permitted  at  once  to  re- 
assume  the  exercise  of  them  in  the  councils  of  the 
\  nation. 

In  such  a  discussion,  it  is  necessary  that  we  have  a 
clear  and  definite  understanding  of  the  meaning  of 
the  word  "  State,"  as  used  in  the  Constitution,  and  as 
it  should  be  used  in  any  argument  concerning  it. 
There  is  a  great  deal  of  vague  impression  and  loose 
talk  about  the  States  of  the  Union  as  being  sover- 
eign, free,  and  independent ;  affording  .-shelter  for 
much  sophistry  and  declamation,  tending  to  obscure  a 


STATE    RIGHTS.  O 

subject  which,  above  all  others  of  the  day,  demands 
careful  analysis  and  calm  reasoning. 

The  simple  definition  of  a  State,  politically  speak- 
ing, is  a  people  inhabiting  a  definite  territory,  and 
possessing  an  organized  government  to  which  they 
owe  obedience ;  and  this  definition  applies  exactly  to 
the  several  States  of  the  Union.  But  there  are  .vari- 
ous kinds  of  such  States. 

Some  are  possessed  of  absolute  sovereignty,  both 
internal  and  external,  having  not  only  entire  control 
over  the  municipal  relations  and  affairs  of  their  sub- 
jects, but  also  unlimited  power  over  their  external 
relations  to  other  nations.  These  constitute  and  are 
universally  recognized  as  individual  nations,'  or  mem- 
bers of  the  family  of  nations. 

There  are  others,  which,  existing  as  independent 
communities  and  possessing  supreme  authority  inter- 
nally over  their  subjects,  have  nevertheless  no  sepa- 
rate national  sovereignty,  but  are  united  with  other 
States  by  a  common  league  or  compact,  by  which 
their  external  or  national  sovereignty  is  committed  to 
a  central  authority,  representing  them  unitedly  as  one 
nation;  they  separately  neither  claiming,  nor  being 
recognized,  to  be  distinct  members  of  the  family  of 
nations. 

Such  States  cannot  be  denominated  sovereign,  free, 
and  independent  States  in  any  general  or  seemingly 
appropriate  use  of  those  terms,  —  not  being  so  in  the 
most  important  elements  of  State  sovereignty,  free- 


4  RECONSTRUCTION. 

dom,  and  independence ;  namely,  those  of  national 
power  and  relationship  to  other  nations. 

In  States  of  the  first-named  class,  rebellion  against 
the  national  sovereignty,  in  whatever  form,  is  treason 
in  every  individual  engaged  in  it,  and  punishable 
accordingly. 

In  those  of  the  second,  the  rebellion  of  any  one 
State  against  the  central  authority  does  not  render 
any  of  its  citizens  guilty  of  treason  against  it,  nor 
make  him  personally  punishable  for  that  crime  or 
otherwise.  It  is  simply  the  violation  or  breach  of 
the  compact  by  the  State  to  which  its  subjects  owe 
exclusive  allegiance ;  and  the  only  redress  for  the 
other  parties  is  by  war  against  the  State,  to  compel 
the  fulfilment  of  its  obligations,  or  to  obtain  redress 
for  the  breach  of  them ;  and,  if  they  succeed  in  the 
conflict,  the  State  becomes  a  conquered  territory,  over 
which  the  victors  have  all  the  rights  of  war, — includ- 
ing, of  course,  those  to  prescribe  conditions  on  which 
the  subdued  State  shall  be  re-admitted  to  the  league, 
or  may  thereafter  exercise  any  internal  or  external 
sovereignty. 

It  was  to  this  last-named  class  that  the  inhabitants 
of  the  rebel  States  claimed  that  they  belonged ;  alle- 
ging that  they  were  sovereign,  free,  and  independent 
States,  united  by  the  Constitution  as  by  a  compact  or 
league  only,  from  which  they  had  the  right  to  secede, 
as  States,  at  pleasure,  or  for  justifiable  cause,  —  they 
being  the  exclusive  judges  of  the  existence  of  any. 


STATE    RIGHTS.  5 

They  claimed  that  they  owed  personal  allegiance  to 
their  respective  States,  and  not  to  the  United  States ; 
and  that,  in  the  resistance  by  their  States  of  the 
authority  of  the  Government  of  the  United  States, 
they,  as  individuals,  were  not  rebels  or  traitors,  but 
persons  acting  in  obedience  to  their  allegiance  to 
those  States  ;  and  which,  as  such,  were  alone  liable,  if 
the  league  or  compact  had  been  unjustly  violated  by 
such  resistance.  And  this,  it  is  generally  understood, 
is  to  be  one  of  the  principal  grounds  of  defence  of 
Jefferson  Davis,  if  not  the  only  one  upon  the  merits, 
should  he  ever  be  put  upon  trial  for  treason. 

If  this  position  be  maintainable,  it  is  difficult  to 
perceive  on  what  ground  the  rebel  States  can  deny 
the  authority  of  the  Government,  as  the  victor  in 
the  contest,  to  dictate  the  terms  of  peace,  and  the 
terms  upon  which  those  States  shall  be  re-admitted 
to  their  former  privileges,  and  to  hold  them  in  sub- 
jection as  conquered  States  during  its  discretion. 

Upon  their  own  theory,  therefore,  and  that  still 
asserted  by  them  as  boldly  as  ever  to  be  the  only  true 
one,  there  could  be  no  question  of  the  right  of  the 
Government  to  prescribe  any  terms  of  re-admission 
which  it  should  think  just  and  expedient. 

But,  in  truth,  the  inhabitants  of  no  one  of  these 
United  States  ever  had  political  existence  as  a  sov- 
ereign, free,  and  independent  State,  possessing  any 
external  or  international  sovereignty  ;  or  ever  had  any 
distinct  separate  nationality. 


6  RECONSTRUCTION. 

The  inhabitants  of  them  were  always,  from  the  be- 
ginning, the  people,  or  portions  of  the  people,  of  one 
empire,  which  alone  maintained  and  exercised  inter- 
national sovereignty,  and  upon  whose  protection  and 
supreme  authority,  as  such,  they  relied. 

In  short,  the  inhabitants  of  them  have  always  been 
substantially,  as  under  the  Constitution  they  now  are, 
one  people. 

Before  the  Revolution,  and  during  its  continuance 
up  to  the  Declaration  of  Independence,  they  were 
inhabitants  of  colonies  or  provinces  of  Great  Britain, 
claiming  all  their  powers  of  internal  government 
under  her  charters  or  commissions,  and  contending 
with  her  only  for  immunity  from  alleged  violations  of 
them.  They  made  no  claim  to  any  sovereignty,  inter- 
nal or  external,  not  directly  granted  by  or  derived 
from  her,  or  belonging  to  them  as  her  subjects. 

They  were  in  all  respects  integral  portions  of  the 
British  empire,  and  so  portions  only  of  one  people. 
Every  inhabitant  of  each  colony  had  the  entire  and 
perfect  rights  of  British  citizenship  in  every  other, 
and  of  carrying  on  trade  and  dwelling  in  it,  under 
the  laws  and  regulations  of  the  empire,  unobstructed 
and  unrestricted  by  colonial  legislation. 

They  carried  on  the  war  of  the  Revolution  for  some 
time  under  the  title  of  the  United  Colonies,  and  for 
the  declared  purpose  of  a  redress  of  grievances  only, 
and  with  no  avowed  view  of  establishing  any  national 
independence. 


STATE    RIGHTS. 


The  first  Congress,  which  assembled  in  1774, 
adopted  the  significant  title,  "The  delegates  appointed 
by  the  good  people  of  these  colonies;"  thus  emphati- 
cally declaring  their  union  as  one  people,  struggling 
in  a  common  cause.  They  asserted,  as  great  constitu- 
tional rights  common  to  all,  the  liberties  and  immuni- 
ties of  the  common  law  of  England,  and  declared 
themselves  as  united  for  the  common  defence  of  those 
rights. 

And  thus  was  the  incipient,  and  soon  to  become 
the  irrevocable  step  taken  to  constitute  themselves  the 
citizens  of  a  new  empire  or  nation. 

The  delegates  to  the  second  Congress,  in  1775,  were 
principally  chosen,  not  by  the  State  legislatures,  as 
representatives  of  the  States,  but  by  conventions  of 
the  people  of  the  several  colonies,  as  representing 
them  ;  although,  in  some  instances,  they  were  chosen 
by  the  popular  branch  of  the  legislature,  the  choice 
being  afterwards  ratified  by  such  conventions. 

Soon  after  its  assembling,  and  before  its  second  ses- 
sion in  September,  actual  war  had  commenced  in 
Massachusetts,  and  was  imminent  in  other  colonies ; 
and  the  Congress  immediately  proceeded  "  to  put  the 
country  into  a  state  of  defence,"  as  one  common 
country.  It  assumed  and  exercised  control  over  the 
military  operations  of  all  the  colonies ;  created  a 
continental  army ;  appointed  Washington  command- 
er-iii-chief  "  of  the  continental  forces"  and,  in  a  letter 
accompanying  his  commission,  charged  him  to  make 


8  RECONSTRUCTION. 

it  his  especial  care  "  that  the  liberties  of  America  re- 
ceive no  detriment."  It  also  provided  a  continental 
currency ;  directed  reprisals  upon  the  ships  and  mer- 
chandise of  Great  Britain ;  established  a  treasury 
department,  general  post-office;  and  regulated  the 
relations  with  the  Indian  tribes. 

In  short,  the  inhabitants  of  the  colonies,  before  the 
Declaration  of  Independence,  had  substantially  estab- 
lished a  national  Government  in  the  name  and  with 
the  general  consent  and  approbation  of  the  people, 
and  with  all  the  principal  attributes  of  a  nation,  ex- 
cepting that  of  international  sovereignty,  which  they 
had  not  yet  claimed.  The  struggle  was  as  yet  in 
defence  of  their  violated  rights  as  citizens  of  Great 
Britain,  and  carried  on  under  the  title  of  "  The 
United  Colonies ; "  thus  still  recognizing  that  re- 
lationship. 

And  it  was  not  till  after  thus  uniting  themselves 
as  one  people,  engaged  in  a  common  cause,  that  they, 
in  conformity  with  the  recommendation  of  the  Con- 
gress, proceeded  in  their  respective  jurisdictions  to 
make  provisions  for  local  governments  for  the  man- 
agement of  their  domestic  concerns,  which  their  sepa- 
ration from  the  mother  Government  and  the  exigencies 
of  the  times  made  necessary.  So  that  the  formation 
of  a  national  Government,  revolutionary  indeed  and 
with  limited  internal  powers,  but  none  the  less  na- 
tional, acting  as  the  agent,  and  in  the  name  and  with 
the  consent,  of  the  inhabitants  of  the  whole  territory 


STATE    RIGHTS.  9 

embraced  within  the  limits  of  the  colonies,  had  been 
established  by  the  union  in  one  body  of  delegates 
representing  them,  and  was  in  actual  operation  before 
the  adoption  of  the  local  governments,  called  State 
governments,  as  they  have  since  existed ;  and  had 
itself  recommended  their  formation  as  necessary 
means  of  accomplishing  the  purposes  of  its  creation, 
—  very  significant  facts,  surely,  in  illustration  of  the 
true  relations  of  the  States  to  the  General  Govern- 
ment in  their  subsequent  history. 

By  the  Declaration  of  Independence  in  1776,  made 
"  in  the  name  and  behalf  of  the  good  people  of  these 
colonies,"  it  was  enacted  that  they  were  "and  of  right 
ought  to  be  free  and  independent  States ;  that  they 
are  absolved  from  all  allegiance  to  the  British  Crown, 
and  that  all  political  connection  between  them  and 
the  State  of  Great  Britain  is  and  ought  to  be  dis- 
solved ; "  and  that  then*  national  title  thereafter  should 
be  that  of  the  "  United  States  of  America,"  —  by 
which  title  they  have  ever  since  been  universally 
recognized. 

By  these  proceedings,  the  inhabitants  of  all  the 
colonies,  acting  as  one  people,  threw  off  their  allegi- 
ance to  the  British  Crown,  and  claimed  to  become  an 
independent  sovereign  nation,  entitled  to  all  the  rights 
and  attributes  of  external  and  internal  sovereignty  in 
regard  to  all  international  relations. 

They  did  not  assert  any  pretension  of  becoming 
severally  independent  States,  entitled  to  any  such 


10  RECONSTRUCTION. 

sovereignty,  in  their  relation  to  foreign  nations. 
They  claimed  no  membership  as  individual  States  in 
the  family  of  nations ;  nor  did  they  declare  any  inde- 
pendence of  each  other  in  any  relations  with  them  ; 
but  asserted  their  right  to  be  accounted  and  dealt  with 
as  one  sovereign  people  or  nation,  composed  of  the 
inhabitants  of  all  the  States ;  and  as  such,  and  only  as 
such,  have  they  ever  since  been  recognized  in  all  the 
treaties  and  international  relations  of  peace  or  war  into 
which  they  have  since  entered. 

By  reference  to  the  Constitution  of  Massachusetts, 
Part  I.  Art.  IV.  (which  was  adopted  before  the  Arti- 
cles of  Confederation  were  executed),  it  will  be  seen, 
that  she,  in  asserting  the  right  of  her  people  to  gov- 
ern themselves  as  a  free  sovereign  and  independent 
State,  limits  these  rights  to  the  exercise  and  enjoy- 
ment of  every  power,  jurisdiction,  and  right  "which  is 
not,  or  may  not  hereafter  be,  by  them  expressly  delega- 
ted to  the  United  States  of  America  in  Congress  as- 
sembled" Now,  at  that  time  the  United  States  of 
America  was  the  only  nation  known  or  recognized,  or 
claiming  to  exist,  as  one  of  the  family  of  nations,  and 
of  which  each  State  formed  only  a  component  part, 
pursuant  to  the  Declaration  of  Independence.  No 
disavowal  of  distinct  or  independent  or  sovereign 
nationality  could  be  more  explicit. 

The  local  allegiance,  however,  of  the  inhabitants 
of  each  colony,  before  due  to  the  Crown,  was 
declared  to  be  transferred,  not  to  the  central  national 


STATE    RIGHTS.  11 

Government  thus  established,  but  to  the  colony  itself, 
or,  in  the  language  of  a  resolution  adopted  by  the 
Congress,  "  to  the  laws  of  the  colony."  The  relations 
of  individuals  to  the  national  Government  were  no- 
where defined,  but  left  to  construction  upon  the 
nature  of  this  union  of  the  colonies  or  States  in  a 
national  sovereignty. 

Hitherto  there  had  been  no  written  articles  of 
confederation  or  agreement,  by  which  the  obligation 
of  the  States,  or  the  authority  of  the  Congress,  or  the 
nature  of  the  central  Government,  were  defined. 

The  powers  of  an  external  national  sovereignty 
had  been  assumed  and  acted  upon  by  the  consent 
of  the  people  ;  but  its  internal  authority,  or  means  of 
maintaining  itself,  were  all  left  to  loose  construction, 
or  the  voluntary  agency  of  the  several  independent 
States  to  comply  with  their  respective  duties,  result- 
ing from  the  alliance. 

Whether  either  of  the  colonies  or  States  was  so 
bound  by  this  alliance  as  to  be  incapable  of  abandon- 
ing it  at  pleasure  —  being  in  the  nature  of  a  voluntary 
party  to  a  copartnership  without  limitation  of  time, 
and  without  any  right  on  the  part  of  the  other  States 
to  enforce  its  compliance  with  the  requisitions  of  the 
Congress  for  the  carrying-on  of  the  war  of  independ- 
ence, in  which  they  had  thus  united  —  may  perhaps 
be  considered  questionable ;  although  such  abandon- 
ment would  seem  to  be  an  obvious  breach  of  good 
faith  to  the  rest,  with  which  it  had  embarked  as  in  a 


12  RECONSTRUCTION. 

common  cause.  But  the  decision  of  the  question  is 
immaterial,  as  it  was  soon  finally  disposed  of  before 
it  was  practically,  if  ever,  raised  by  the  subsequent 
Articles  of  Confederation. 

The  embarrassment  and  inefficiency  evidently  re- 
sulting from  this  state  of  affairs  rendered  some  more 
definite  bond  of  obligation  and  union  essential;  and 
the  Congress  in  November,  1777,  addressed  a  circu- 
lar letter  to  the  legislatures  of  the  several  States, 
recommending  them  "  to  invest  the  delegates  of  the 
States  with  competent  powers  ultimately,  in  the  name 
and  behalf  of  the  State,  to  subscribe  articles  of 
confederation  and  perpetual  union  of  the  United 
States,  and  to  attend  Congress  for  that  purpose  on  or 
before  the  tenth  day  of  March  next." 

But  it  was  not  tiU  1781  that  the  articles  were 
adopted,  owing  to  many  causes  of  delay,  a  principal 
one  of  which  was  the  claims  of  several  of  the  States 
to  the  Western  lands,  extending  to  the  Pacific  Ocean, 
which  it  was  contended  by  the  other  States  should  be 
held  in  common,  as  purchased  by  the  common  blood 
and  treasure  of  all  of  them ;  and  which  lands  were 
finally  ceded  to  the  United  States  immediately  after 
the  articles  were  executed,  thus  constituting  a  most 
important  further  bond  of  national  union,  and  an 
inestimable  element  of  future  wealth  and  power. 

By  these  Articles  of  Confederation,  the  government 
was  to  consist  of  a  single  representative  body  called 
a  "  General  Congress,"  in  which  were  vested  all  the 


STATE    RIGHTS.  13 

powers,  executive,  legislative,  and  judicial,  granted 
to  the  United  States.  Each  State  was  to  maintain  its 
own  delegates  ;  and,  in  the  determination  of  questions, 
the  voting  was  to  be  by  States,  each  State  being 
entitled  to  one  vote.  The  agreement  was  styled 
"  Articles  of  Confederation  and  Perpetual  Union " 
between  the  thirteen  States  named;  and  this  body 
politic  was  styled  "  The  United  States  of  America." 
Each  State  retained  its  sovereignty,  freedom,  and 
independence,  and  every  power,  jurisdiction,  and  right 
not  expressly  delegated  to  the  Congress.  And  the 
nature  and  objects  of  the  Union  were  described  as  a 
firm  league  of  friendship  between  the  States  for  their 
common  defence,  the  security  of  their  liberties,  and 
their  mutual  and  general  welfare ;  and  the  parties 
bound  themselves  to  assist  each  other  against  all  force 
offered  to  or  attack  made  upon  them,  or  any  of  them, 
on  account  of  religion,  sovereignty,  trade,  or  under 
any  other  pretence  whatever.  The  free  citizens  of 
each  State  were  entitled  to  all  privileges  and  immuni- 
ties of  free  citizens  in  the  several  States.  All  the 
general  powers  of  external  national  sovereignty  were 
vested  in  the  Congress,  —  the  powers  of  treaty,  peace 
and  war,  regulating  the  coin,  creating  public  debt, 
building  and  equipping  a  navy,  determining  the 
number  of  land  forces,  and  of  making  requisitions 
upon  each  State  for  its  quota  of  men  and  money. 
The  several  States  were  prohibited  from  receiving  or 
sending  embassies,  or  entering  into  any  treaties  with 


14  RECONSTRUCTION. 

foreign  powers  or  with  each  other  without  consent  of 
Congress. 

In  short,  the  Articles  of  Confederation  constituted 
the  people  of  the  States,  thus  united,  one  nation,  as 
entirely  as  it  was  practicable  for  any  mere  league  or 
confederation  of  States  to  do  so. 

They  were  of  essential  importance  in  enabling  the 
Congress  to  carry  through  the  war.  But  after  the 
peace,  and  when  the  bond  of  a  common  paramount 
interest  and  necessity  had  ceased,  and  State  jealous- 
ies, rivalries,  weaknesses,  and  selfishness  had  shown 
the  entire  insufficiency  of  such  a  compact  for  the 
necessary  strength  and  respectability  of  the  nation 
abroad,  and  its  internal  peace  and  security  at  home, 
the  people  became  conscious  of  the  necessity  of 
establishing  a  closer  bond  of  union  as  one  people, 
under  a  common  government,  having  internal  as  well 
as  external  sovereignty ;  to  which  each  citizen  should 
owe  a  personal  allegiance,  and  from  which  he  might 
claim  protection ;  and  whose  powers  for  all  national 
purposes  should  act  upon  each  individual  citizen 
directly,  and  not  through  the  agency  of  State  gov- 
ernment. 

And  from  this  necessity  resulted  the  Constitution, 
upon  the  nature  and  construction  of  which  the  solu- 
tion of  this  question  must  now  depend. 

Such  was  the  condition  of  the  nation  and  of  the 
several  States  at  the  time  of  the  adoption  of  that  Con- 
stitution, and  such  the  evils  which  it  was  intended 
to  remedy. 


STATE   RIGHTS.  15 

From  this  history,  nothing  can  be  clearer  than  the 
proposition  that  no  one  of  these  States  had  ever  been 
free,  sovereign,  and  independent  in  its  external,  how- 
ever it  may  have  been  so  in  its  internal  relations; 
but  with  regard  to  them  no  controversy  has  ever 
arisen. 

There  has  never  been  a  moment,  from  the  breaking- 
out  of  the  Revolution,  when  the  inhabitants  of  any  one 
of  these  States  ever  pretended  to  be  a  separate  people 
from  those  of  any  other  State  in  any  national  relation 
whatever ;  on  the  contrary,  they  always  claimed  to  be 
portions  of  the  people  of  Great  Britain  at  the  outset, 
and  to  become  exclusively  one  independent  people 
after  declaring  their  final  separation  from  her.  Rights 
of  national  citizenship  were  never  claimed  by  the  in- 
habitants of  any  particular  State,  as  distinguished 
from  those  of  any  other  State,  but  always  as  citizens 
of  the  United  States,  comprehending  them  altogether. 
It  is  true  that  they  were  internally  divided  into  sepa- 
rate and  distinct  municipal  governments,  sovereign 
and  independent  in  ah1  that  regards  their  domestic 
relations;  and  could  contract  as  such  States,  as  being 
entirely  independent  so  far  as  they  had  not  surren- 
dered the  power  so  to  contract  to  the  central  Govern- 
ment. 

But  no  one,  it  is  believed,  can  contend,  that,  after 
the  adoption  of  the  Articles  of  Confederation,  any 
one  State  could  have  broken  off  from  the  confederacy 
and  made  a  separate  treaty  of  peace  with  England, 


16  RECONSTRUCTION. 

or  allied  itself  to  any  other  foreign  power ;  or  could 
have  established  any  laws  or  regulations  subversive 
of  the  common  rights  and  interests  of  all,  in  their 
external  relations  with  other  nations  or  in  those  inter- 
nal to  each  other. 

To  be  sure,  no  such  act  would  have  constituted  any 
personal  crime  on  the  part  of  any  inhabitant  of  such 
State  against  the  General  Government,  because  they 
owed  personal  allegiance  to  the  State  only. 

But  the  General  Government  would  have  had  the 
clear  and  manifest  right,  in  such  case,  to  interfere, 
and  by  force  of  war,  if  necessary,  to  compel  con- 
formity by  the  State  to  the  general  compact,  and  to 
enforce  its  requisitions  if  disobeyed.  Civil  war  was 
thus,  indeed,  the  only  remedy ;  and  it  was  to  provide 
against  this  evil  and  weakness,  among  others,  that 
the  Constitution  was  established.  But,  if  the  result 
of  any  such  war  had  been  the  subjugation  of  the 
State,  it  is  clear  that  it  would  have  been  at  the 
mercy  of  the  victor  as  to  terms  of  future  re-admission 
to  the  rights  of  the  confederation. 

At  the  time,  then,  of  the  formation  of  the  Consti- 
tution, the  inhabitants  of  the  thirteen  States,  retaining 
the  internal  sovereignties  of  each  of  them,  were  united 
as  one  people  or  nation  in  all  that  regarded  external 
sovereignty,  or  any  claimed  or  acknowledged  national 
existence  ;  and  were  possessed  of  a  vast  extent  of  un- 
occupied territory  as  tenants  in  common  and  joint 
owners,  which  was  to  be  divided  into  new  States  in 


STATE    RIGHTS.  17 

union  with  them,  and  composing  with  them  a  common 
country,  so  fast  as  it  should  become  peopled ;  and 
which  was  incapable  of  division  or  apportionment 
among  them  upon  any  principle  on  which  it  had  been 
granted,  —  the  only  one  recognized  being  that  of  a 
national  domain. 

They  had  become,  therefore,  essentially  a  nation 
under  a  government  exercising  unqualified  external 
sovereignty,  possessed  of  a  common  country,  and  need- 
ing only  the  surrender  to  it  of  a  portion  of  certain 
independent  rights  hitherto  preserved  by  them  as 
separate  States,  which  interfered  with  their  enjoy- 
ment of  the  internal  sovereignty  essential  for  secur- 
ing the  blessing  of  a  perfect  nationality,  and  which 
the  Constitution  was  destined  to  provide  for. 


18  RECONSTRUCTION. 


CHAPTER  II. 

THE    CONSTITUTION  —  FORMATION    OF,    AND    INDIVIDUAL 
AND    STATE  RIGHTS  AND  DUTIES   UNDER  IT. 

THERE  was  a  provision  in  the  Articles  of  Confede- 
ration for  making  alterations  therein,  by  the  assent  of 
a  Congress  of  the  United  States  and  of  the  legisla- 
tures of  the  several  States.  And  in  February,  1787, 
in  the  Congress  then  in  session,  a  resolve  was  passed, 
reciting  that  whereas  experience  had  evinced  that 
defects  existed  in  the  present  confederation,  and  a 
convention  of  delegates  had  been  proposed  to  remedy 
them,  "  and  such  a  convention  appeared  to  be  the 
most  probable  means  of  establishing  in  these  States 
a  firm  national  government"  it  was  expedient,  to  call 
a  convention  of  delegates  for  the  purpose  of  revising 
the  articles,  and  reporting  to  Congress  and  the  several 
legislatures  c;such  alterations  as  should,  under  the 
Federal  Constitution,  be  adequate  to  the  exigencies 
of  government  and  the  protection  of  the  Union." 

The  several  States  assented -to  the  proposition,  and 
appointed  delegates  to  the  Convention,  which  assem- 
bled at  Philadelphia,  in  May,  1787. 

Although  the  purpose  of  the  Convention  was  to 
amend  the  Articles  of  Confederation,  it  was  soon  ap- 
parent from  the  common  stock  of  information  con- 


THE    CONSTITUTION.  19 

tributed  by  the  delegates,  of  the  utter  inefficiency  of 
any  mere  league  or  confederation  to  accomplish  the 
ends  desired,  that  nothing  short  of  a  consolidated 
national  government,  with  full  powers  of  maintaining 
itself  internally,  as  well  as  externally,  by  direct  action 
upon  the  individual  citizens  composing  the  nation, 
in  regard  to  all  that  pertains  to  the  exercise  of  na- 
tional as  distinguished  from  municipal  authority,  could 
answer  to  the  national  exigency. 

And  the  final  result  of  prolonged,  laborious,  and 
exhaustive  discussion  of  the  subject  by  the  greatest 
men  of  that  age,  and  who  would  have  been  not  less 
distinguished  in  any  other  age  or  nation,  was  the 
present  Constitution. 

As,  however,  it  far  transcended  any  mere  alteration 
or  amendment  of  the  Articles  of  Confederation, — 
being  in  fact  the  substitution  of  "  a  firm  national 
government"  over  the  whole  people  of  the  United 
States,  in  place  of  a  league  of  the  States,  —  it  was 
clearly  necessary  to  submit  its  adoption  directly  to  the 
people,  acting  in  their  primary  capacity,  and  not  to 
the  State  legislatures,  as  mere  amendments  of  the 
articles  might  have  been  and  were  intended  to  be;  it 
being  obvious  that  State  legislatures  could  have  no 
authority  thus  to  transfer  the  personal  allegiance  of 
their  citizens  to  that  of  a  central  government,  or  part 
with  the  sovereign  power  with  which  they  were 
invested  by  the  people  under  their  several  State  con- 
stitutions. 


20  RECONSTRUCTION. 

The  question  was  of  the  substitution  of  a  constitu- 
tional government  in  the  place  of  a  league,  and  was 
one,  therefore,  which  the  people  alone,  and  not  the 
State  legislatures,  could  lawfully  decide. 

The  Constitution  was  therefore  reported  by  the 
Convention  to  the  Congress  for  its  approval  and  sanc- 
tion, and  by  it  the  several  State  legislatures  were 
invited  to  recommend  the  assembling  of  conventions 
of  the  people  to  decide  upon  its  adoption  or  rejection ; 
and  it  was  finally  adopted  by  the  people,  or  their  dele- 
gates to  conventions  called  for  the  purpose  of  deciding 
upon  it,  and  thus  became  the  supreme  law  of  the 
land.  And  by  the  nature  and  objects  and  letter  and 
spirit  of  this  Constitution  must  the  question  at  issue 
now  be  decided,  with  the  aid,  where  needed,  of 
such  light  as  may  be  drawn  from  the  previous  history 
above  alluded  to. 

Now,  up  to  the  time  of  the  adoption  of  the  Consti- 
tution, the  people  of  the  several  States  had,  as  above 
shown,  become  one  people  or  nation,  so  far  as  their 
external  national  sovereignty  was  concerned,  the  gov- 
ernment of  which  resided  in  the  general  Congress ; 
each  of  the  States  possessing  the  right  of  sending 
delegates  to  that  Congress,  and  the  right  to  one  vote 
in  its  deliberations  and  decisions.  But  each  remained 
at  the  same  time  supreme  and  independent  in  its  in- 
ternal sovereignty,  excepting  in  so  far  as  the  Articles 
of  Confederation  imposed  limits  thereupon,  —  which 
limits  were  few,  but  of  essential  importance  in  pro- 


THE    CONSTITUTION.  21 

viding  for  the  necessities  of  internal  commerce  and 
equality  of  rights  between  the  respective  inhabitants 
of  the  different  States. 

But  by  the  Constitution  all  this  was  changed.  By 
its  express  terms,  the  national  Government  was  no 
longer  to  consist  of  a  confederation  of  States,  to  be 
administered  by  their  respective  delegates,  but  a  gov- 
ernment of  the  whole  people  of  the  United  States  as 
one  people,  under  one  supreme  sovereignty  internally 
and  externally  so  far  as  national  sovereignty  was  con- 
cerned ;  a  government  of  which  the  people  were  to 
elect  the  legislators  and  rulers  by  their  own  personal 
votes,  as  representing  them,  and  accountable  directly 
to  them,  and  not  as  representing  the  States,  or  as 
accountable  to  them. 

In  short,  it  established  a  "  firm  national  govern- 
ment" as  supreme  in  all  things,  touching  its  external 
and  internal  sovereignty  over  its  subjects  or  citizens, 
as  that  possessed  by  any  other  government  of  any 
other  nation.  The  existence  of  the  several  States 
as  independent  and  sovereign  in  their  municipal  or 
domestic  relations,  and  as  having  certain  rights  and 
powers  as  constituents  of  the  General  Government, 
was,  indeed,  fully  provided  for,  and  an  equal  repre- 
sentation was  reserved  to  them  in  the  Senate,  —  a 
most  wise  and  salutary  measure  for  the  preservation 
of  that  independence  and  sovereignty,  and  for  con- 
stituting a  most  important  check  upon  the  popular 
body  representing  the  whole  people.  It  is  worthy 


22  RECONSTRUCTION. 

of  remark,  that,  while  in  the  Articles  of  Confedera- 
tion the  sovereignty,  freedom,  and  independence  of 
each  State,  and  every  power,  jurisdiction,  and  right 
not  expressly  delegated  to  the  United  States  in  Con- 
gress assembled,  are  expressly  reserved,  not  a  word 
is  found  in  the  Constitution  of  any  sovereignty  as 
derived  from,  or  granted  to,  or  existing  in  the  States. 
On  the  contrary,  the  declaration  that  "  the  powers 
not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively  or  to  the  people,"  conclusively 
shows  that  the  whole  people  of  the  United  States, 
as  9ne  people,  were  considered  and  intended  to  be 
recognized  as  the  ultimate  source  of  all  national 
power  and  sovereignty. 

The  States  were  to  enjoy  all  the  powers  they 
originally  possessed  not  prohibited  to  them,  and 
certain  very  important  new  powers  granted  to  them, 
by  the  Constitution ;  the  government  of  the  United 
States  was  to  possess  all  the  powers  thereby  vested 
in  it  expressly  or  by  necessary  implication ;  and 
the  inhabitants  of  all  the  States,  collectively  as  one 
people,  were  made  the  depository  of  all  other  power 
whatsoever. 

Much  profitless  discussion  has  taken  place  upon  the 
manner  in  which  the  Constitution  was  adopted ;  the 
advocates  of  secession  and  other  apologists  of  it  as- 
serting that  the  Constitution  was  the  act,  or  creation 
of  the  State  governments,  in  the  exercise  of  State  sov- 


THE    CONSTITUTION.  .  23 

ereignties,  while  others  contend  that  it  was  the  crea- 
tion of  the  whole  people  of  the  several  States,  acting 
as  one  people,  for  the  establishment  of  one  national 
government. 

Nothing  is  plainer,  however,  than  that  the  State 
governments  had  nothing  to  do  with  the  matter,  fur- 
ther than  to  recommend  to  their  several  peoples  to 
meet  together  and  appoint  delegates  to  conventions 
to  represent  and  act  for  them  upon  the  question  of  its 
adoption,  and  to  report  their  decisions  to  the  Con- 
gress. 

This  was  the  only  course  which  was  open  to  secure 
the  uniform  calling  of  such  conventions, — to  give  the 
legislative  sanction  of  each  State  to  any  transfer  or 
surrender  which  the  people  might  see  fit  to  make  to 
the  General  Government  of  any  of  the  powers  which 
they  had  heretofore  vested  in  the  State  governments ; 
and  above  all  was  the  only  mode  of  obtaining  the  true 
result  of  a  popular  vote  of  the  whole  people  upon  the 
subject;  it  being  obvious  that  the  various  interests, 
opinions,  and  sentiments  of  the  whole  people  could 
be  far  better  ascertained  by  this  mode  of  voting 
upon  the  question  in  divisions  or  districts,  than  it 
could  be  by  a  general  vote,  in  which  the  majority  of 
the  whole  might  control  and  constrain  the  universal 
wish  or  interests  of  large  and  important  sections  of  the 
country.  It  is  undeniably  true,  that  the  people  of 
each  State  were  so  far  sovereign  and  independent 
that  they  could  not  be  required  to  surrender  that 


24  RECONSTRUCTION. 

sovereignty  and  independence,  to  the  extent  required 
by  the  Constitution,  without  their  consent ;  and  this 
would  of  necessity  require  the  inhabitants  of  each 
State  to  vote  separately  and  collectively  on  the  question. 
But  it  is  none  the  less  true,  that  the  decision  was  not  by 
the  State  governments  in  their  corporate  capacity,  but 
by  the  people  in  their  primary  capacity,  deciding 
whether  they  would  or  would  not  become  one  people 
with  those  of  all  the  other  States,  under  one  form  of 
entire  national  sovereignty. 

But,  be  this  as  it  may,  the  fact  seems  indisputable, 
that  the  inhabitants  of  the  several  States,  by  the 
adoption  of  the  Constitution,  did  voluntarily  unite 
themselves  as  one  people  under  one  supreme  national 
Government  invested  with  all  necessary  powers  of 
national  sovereignty,  internal  and  external, —  a  Gov- 
ernment which  claims  from  them,  as  individuals, 
personal  allegiance  to  its  authority,  and  extends  over 
them  personal  protection;  and  which  claims  also  from 
the  political  bodies  or  States,  of  which  they  were  also 
members,  allegiance  as  such  States  and  compliance 
with  the  corresponding  obligations  imposed  upon 
them,  while  extending  also  over  them  its  protection 
in  the  enjoyment  of  all  their  political  rights  as  such 
States. 

The  principal  rights  of  individuals  as  citizens  of 
the  United  States,  thus  created  by  the  Constitution, 
were  those  of  the  elective  franchise  in  forming  the 

O 

House  of  Representatives ;  of  protection  in  property, 


THE    CONSTITUTION.  25 

liberty,  and  life  under  the  laws;  and  the  rights  of 
universal  citizenship  in  the  territories  and  jurisdiction 
of  each  State.  The  principal  rights  of  the  States 
were  the  elective  franchise  of  equal  representation  in 
the  Senate ;  of  protection  in  the  maintenance  of 
a  republican  form  of  government,  and  against  for- 
eign invasion  and  internal  sedition ;  with  the  enjoy- 
ment, in  common  with  the  inhabitants  of  all  the 
other  States,  of  free  and  unrestricted  trade  and 
intercourse  among  themselves,  and  of  equal  com- 
mercial advantages  in  their  trade  and  intercourse  with 
foreign  nations. 

To  which  was  added  the  participation  in  the 
sovereign  power  of  enacting  amendments  to  the 
Constitution,  if  Congress  should  elect  that  mode 
of  submitting  any  to  the  tribunal  of  State  determi- 
nation. 

All  these  powers,  rights,  and  immunities  were  cre- 
ated by  the  Constitution,  and  made  dependent  upon  its 
authority.  They  have  no  other  origin,  no  other  right 
to  be;  and  necessarily  involve,  upon  every  principle 
of  public  or  civil  law,  justice  and  good  faith,  corre- 
sponding obligations  for  obedience  to  its  authority  and 
fidelity  to  its  support. 

So  far,  therefore,  is  the  proposition  that  the  States 
created  the  Constitution,  so  often  asserted,  from  being 
true,  that  the  reverse  is  much  more  nearly  so.  It 
was  the  Constitution  which  conferred  all  the  rights 
which  the  States  derived  under  it,  and  now  have,  as 

4 


26  RECONSTRUCTION. 

original  grants.  It  was  the  people  of  the  whole 
United  States  which  thus  created  and  defined  the  indi- 
vidual, corporate,  and  political  rights  of  all  the  parties 
to  it. 

The  only  authors  or  framers  of  the  Constitution 
were  the  inhabitants  of  the  several  States  in  their 
primary  capacities,  as  the  acknowledged  fountains  of 
all  political  power,  who  thus  changed  the  organi- 
zations and  political  constitutions  of  the  several  States  ; 
taking  from  them  certain  hitherto  existing  independ- 
ent corporate  powers  and  immunities,  and  investing 
them  with  certain  new  powers,  immunities,  and  rights, 
not  before  enjoyed  ;  imposing  upon  them  certain  new 
duties  and  obligations,  in  order  to  adapt  them  to 
the  new  order  of  things  ;  and  uniting  themselves  as 
one  consolidated  nation  or  people,  in  which  all  politi- 
cal power,  not  thus  otherwise  disposed  of,  was  de- 
clared to  be  thereafter  for  ever  deposited. 

We  have  then  next  to  ascertain  what  were  the 
relations  of  the  inhabitants  of  the  several  States  to 
the  national  Government,  and  their  rights  and  obliga- 
tions as  such  inhabitants  under  the  Constitution. 


STATES    UNDER    THE    CONSTITUTION.  27 


CHAPTER  III. 

STATES  UNDER  THE  CONSTITUTION— RIGHTS  OF  REPRE- 
SENTATION IN  CONGRESS  — CONDITIONS  OF— EFFECTS 
OF  STATE  REBELLION. 

BY  the  Constitution,  entire  nationality  was  substi- 
tuted for  confederation.  While,  as  before  stated,  the 
people  of  the  several  States  retained  their  internal 
sovereignty  over  their  domestic  relations,  they  sur- 
rendered to  the  nation  all  the  attributes  of  external 
and  many  of  the  most  essential  of  those  of  internal 
sovereignty ;  entered  into  obligations  of  allegiance 
and  obedience  to  the  Constitution,  and  all  laws  made 
in  pursuance  thereof,  as  the  supreme  law  of  the  land ; 
and  made  an  oath  by  persons  elected  to  offices  of 
State  to  support  the  Constitution,  essential  to  the 
organization  of  their  respective  State  governments. 
In  return  for  which,  the  Constitution  conferred  upon 
the  citizens  of  all  the  several  States,  or  secured  them 
in  .the  enjoyment  of  two  distinct  classes  of  political 
rights  and  privileges,  —  one  of  these  pertaining  to 
them  individually  as  citizens  of  the  nation ;  and  the 
other  consisting  of  those  which  each  has  in  combina- 
tion with  others  as  members  of  the  political  corporate 
body  or  State  of  which  they  are  inhabitants,  including 


28  RECONSTRUCTION. 

those  of  representation  in  the  Senate  and  House  of 
Eepresentatives  in  Congress. 

The  word  "  State,"  therefore,  as  used  in  the  Consti- 
tution, can  only  be  construed  to  signify  one  under  a 
government  organized  according  to  its  requisitions, 
recognizing  its  supreme  authority,  and  admitting  the 
duty  of  obedience  to  its  provisions  and  to  all  laws 
enacted  in  conformity  with  it.  If  a  State  be  not  in 
this  condition,  although  it  may  still  exist  as  a  State 
within  the  Union,  its  inhabitants  remaining  subject 
to  the  territorial  jurisdiction  of  the  General  Govern- 
ment, and  to  the  Constitution  and  the  laws,  and  to 
compulsory  obedience  to  them,  —  nevertheless,  it  is 
not  a  State  contemplated  by  the  Constitution  as  en- 
titled to  the  rights  of  those  who  have  remained  in  full 
communion  under  it.  And  this  proposition,  seem- 
ingly so  self-evident,  is  made,  if  possible,  more  mani- 
festly true  upon  examining  its  provisions  touching 
the  rights  and  obligations  created  by  it.  Take,  for 
instance,  the  rights  of  representation  in  Congress,  the 
immediate  subjects  of  inquiry. 

One  of  the  most  important  of  the  rights  or  privi- 
leges which  the  Constitution  confers  upon  every  citi- 
zen of  the  United  States  as  an  individual,  and  that 
mainly  involved  in  the  consideration  of  the  question 
in  hand,  is  that  of  the  elective  franchise,  in  being 
represented  in  the  House  of  Representatives  in  the 
national  Government.  This  is  obviously  a  national 
right,  or  one  to  which  he  is  entitled  as  a  citizen  of 


STATES    UNDER    THE    CONSTITUTION.  29 

the  United  States,  to  be  exercised  for  the  common 
welfare  of  them  all.  And  the  members  of  the  House, 
elected  by  its  exercise,  are  representatives  of  the 
nation,  a  portion  of  its  Government,  and,  in  no  proper 
sense,  representatives  of  the  State,  or  in  any  way  jus- 
tifiable in  regarding  its  peculiar  interests  otherwise 
than  as  component  parts  of  the  good  of  the  whole. 

But  although  the  individual  is  invested  with  this 
franchise  as  a  citizen  of  the  United  States,  or  as  one 
member  of  the  whole  nation,  and  to  be  exercised  for 
the  common  good,  it  is  nevertheless  one  granted  to 
him  as  an  inhabitant  or  member  of  the  State  to  which 
he  belongs,  and  is  inseparately  connected  with  such 
membership ;  so  that  if  the  State  should  cease  to 
exist  as  a  duly  organized  State,  within  the  provisions 
of  the  Constitution,  or  he  should  cease  to  be  an 
inhabitant  of  any  such  State,  the  right  or  franchise 
would  no  longer  exist,  although  he  might  continue  to 
be  a  citizen,  and,  as  such,  answerable  to  the  laws  of 
the  United  States. 

This  is  evident  from  the  language  and  spirit  of  the 
Constitution.  It  provides  that  "  the  House  of  Rep- 
resentatives shall  be  composed  of  members  chosen 
every  second  year  by  the  people  of  the  several  States  ; 
and  the  electors  shall  have  the  qualifications  requi- 
site for  electors  of  the  most  numerous  branch  of  the 
State  Legislature." 

Again :  "  No  person  shall  be  a  Representative  who 
shall  not,  when  elected,  be  an  inhabitant  of  that  State 


30  RECONSTRUCTION. 

in  which  he  shall  be  chosen."  Again :  "  Representa- 
tives and  direct  taxes  shall  be  apportioned  among  the 
several  States  which  may  be  included  in  this  Union 
according  to  their  respective  numbers."  "  The  num- 
ber of  Representatives  shall  not  exceed  one  for  every 
thirty  thousand,  but  each  State  shall  have  at  least  one 
representative.'''  "  When  vacancies  happen  in  the 
representation  from  any  State,  the  executive  authority 
thereof  shall  issue  writs  of  election  to  fill  such  vacan- 
cies." The  existence,  therefore,  of  this  franchise,  al- 
though it  is  vested  in  the  individual  as  a  citizen  of 
the  United  States,  is  nevertheless  made  dependent 
upon  his  membership  of  a  State,  regularly  constituted 
within  the  Union,  and  upon  the  action  of  such  State 
in  prescribing  his  qualifications  as  an  elector ;  and,  in 
case  of  a  vacancy,  upon  the  will  of  the  executive  to 
cause  it  to  be  filled. 

It  follows,  therefore,  that,  if  the  State,  of  which 
any  citizen  of  the  United  States  is  an  inhabitant,  be 
not  one  duly  organized,  or  otherwise  be  not  in  com- 
munion with  the  other  States,  in  obedience  to  the 
Constitution  and  the  laws,  or  shall  have  become  by 
repudiation  or  any  other  cause  not  entitled  to  the 
rights  and  privileges  of  a  State  under  the  provisions 
of  them,  no  inhabitant  of  such  State  can  claim  the 
right  to  exercise  the  franchise,  however  loyal  he 
personally  may  be  to  the  General  Government,  or  how- 
ever zealously  he  may  have  opposed  such  disorgani- 
zation, repudiation,  or  rebellion,  and  so  be  an  unwilling 
victim  to  its  consequences. 


STATES    UNDER    THE    CONSTITUTION.  31 

It  may  seem  a  hardship  upon  the  individual  to  be 
thus  deprived  of  a  right  or  privilege  by  the  fault  of 
others  to  which  he  is  no  voluntary  party ;  but  it  is 
an  unavoidable  consequence  of  his  political  condition 
as  the  citizen  of  a  contumacious  or  rebellious  State, 
rendering  personal  discrimination  impossible. 

This  rule,  founded  in  unavoidable  necessity,  ap- 
plies, with  the  semblance  of  still  greater  hardship, 
to  the  property  of  innocent  inhabitants  of  a  State  in 
rebellion  against  the  national  Government.  If  a  State 
having  jurisdiction  of  a  definite  territory,  of  which  it 
is  possessor,  rebel  against  the  sovereign  national  Gov- 
ernment, and  actual  war  has  arisen  between  them, 
such  territory  is  by  public  law  considered  to  be  ene- 
mies' territory,  and  all  property  within  its  limits,  to 
whomsoever  belonging,  as  enemies'  property,  giving 
strength  and  resources  to  the  enemy,  and,  as  such,  lia- 
ble to  capture  and  condemnation ;  so  that,  in  the 
late  rebellion,  a  vessel  belonging  to  inhabitants  of 
Eichmond,  and  captured  by  a  national  vessel,  was 
adjudged  lawful  prize,  although  the  owners  were  citi- 
zens of  the  United  States,  and  claimed  that  they  had 
always  been  and  were  loyal  to  them,  and  in  no  sense 
voluntary  parties  to  the  rebellion.  (Prize  Cases,  2 
Black's  United-States  Reports,  635.) 

It  may  seem  needless  to  discuss  the  point  further, 
as  the  express  language  of  the  provisions  of  the  Con- 
stitution seems  to  make  it  so  clear.  It  may  be  added, 
however,  that  any  other  construction,  considering 


32  RECONSTRUCTION. 

this  right  of  suffrage  to  be  wholly  personal  as  that  of 
a  citizen  of  the  United  States  only,  and  not  dependent 
upon  the  relations  of  his  State  to  the  Union,  would 
involve,  as  a  necessary  consequence,  the  right  of  the 
inhabitants  of  a  State  in  actual  rebellion  to  elect  and 
send  representatives  to  Congress,  so  long  as  they  re- 
mained without  arrest  or  conviction  for  the  crime  of 
treason  by  due  course  of  law ;  for,  until  such  arrest  or 
conviction,  no  civil  right  can  be  accounted  lost  or  for- 
feited. 

Such  being  believed  to  be  the  principles  of  con- 
struction applicable  to  the  Constitution,  we  have  next 
to  consider  the  effect  of  the  rebellion  upon  the  rela- 
tions of  the  people  of  the  State  to  the  Union,  in  refer- 
ence to  their  right  of  suffrage  as  citizens  of  the  United 
States,  and  to  representation  in  the  national  Govern- 
ment. 

Now,  by  the  rebellion,  which  was  in  the  name  and 
by  the  asserted  powers  and  authority  of  the  several 
rebel  States,  assuming  to  act  in  their  political  capaci- 
ties, it  is  manifest  that  all  their  respective  constitu- 
tions or  governments  contemplated  by  the  Constitution 
of  the  United  States,  or  in  conformity  therewith,  were 
entirely  abolished ;  and  that  entirely  new  one's  were 
substituted,  having  no  affinity  with  those  remaining 
as  loyal  States  in  the  Union,  and  none  of  the  elements 
which  were  necessary  to  entitle  their  inhabitants 
to  participate  in  any  rights  of  representation  in  the 
national  Government.  The  governments,  which  they 


STATES    UNDER   THE    CONSTITUTION.  33 

had  before  rebellion,  were  founded  upon  the  unity 
of  the  people  of  all  the  States  as  one  people  or  na- 
tion, owing  personal  allegiance,  and  upon  well-defined 
and  established  constitutional  relations  to  the  central 
Government;  and  could  not  be  lawfully  organized 
without  the  taking  of  the  oath  of  such  allegiance  by 
every  legislative,  judicial,  and  executive  officer  of 
the  State.  They  were  also  possessed  of  certain  lim- 
ited powers,  prescribed  by  the  Constitution,  and  were 
under  numerous  specified  obligations  to  the  General 
Government ;  all  which  were  essential  elements  of  their 
nature  as  States  under  the  Constitution,  and  on  which 
the  political  rights  of  their  inhabitants-  to  be  repre- 
sented in  the  General  Government  were  founded.  But 
those  governments,  in  all  their  essential  relations  to 
that  of  the  United  States  under  the  Constitution,  were 
utterly  abrogated  by  the  rebellion ;  and  new  ones 
were  substituted,  founded  on  the  denial  of  any  such 
national  unity,  or  any  such  allegiance,  relations,  limits, 
or  obligations.  Nothing  could  be  more  entire  than 
the  total  abolition  of  the  old  State  governments  as 
they  existed  at  the  formation  of  the  Constitution,  and 
continued  up  to  the  time  of  the  rebellion. 

When,  therefore,  the  rebellion  was  subdued,  it  is 
manifest  that  there  were  no  governments  existing  in 
the  rebel  States,  in  conformity  with  the  Constitution, 
or  which  could  entitle  their  inhabitants  to  the  exercise 
of  any  political  powers  under  it. 

The  people  of  these  States  were,  as  to  the  United 

6 


34  RECONSTRUCTION. 

States,  without  any  civil  government  which  that  of 
the  United  States  was  bound  to  respect,  and  subject 
entirely  to  its  military  authority,  or  to  such  govern- 
ments as  it  should  see  fit  to  impose,  until  State 
governments,  in  conformity  to  the  Constitution, 
should  be  again  constructed. 

All  their  inhabitants  who  had  voluntarily  taken 
part  in  the  rebellion  were  criminals,  who,  as  individual 
citizens,  had  forfeited  their  right  to  property,  liberty, 
and  life  under  the  laws,  for  their  attempt  to  destroy 
the  Government  of  their  country ;  and  had  in  the 
same  manner  forfeited  and  lost  their  corporate  rights 
of  representation  and  participation  in  its  Government. 
And  as  they  could  only  be  restored  to  the  former,  by 
authority  of  (he  Government,  so  it  alone  was  to 
restore  the  latter.  Those  States,  as  to  anv  organized 

^  O 

constitutional  government  entitling  them  to  represen- 
tation in  that  of  the  United  States,  were  utterly 
"  without  form,  and  void." 

And  such  was  then  the  universal  belief  and  convic- 
tion of  all  the  officers  of  the  Government,  and  of  the 
people  of  the  loyal  States,  excepting  those  who  had 
always  sympathized  in  the  rebellion,  and  who,  at 
the  least,  are  now  entitled  to  the  credit  of  consistency 
in  taking  the  opposite  ground. 

No  one  was  more  emphatic  in  the  assertion  of  this 
principle  than  the  President,  who,  in  an  official  proc- 
lamation, declared  that  those  States  "  were  deprived 
of  all  civil  government ;  "  and  authorized  the  publica- 


STATES    UNDER   THE    CONSTITUTION.  35 

tion  of  his  declaration  in  conversation  that  "  the 
State  institutions  are  prostrated,  laid  out  on  the 
ground,  and  that  they  must  be  taken  up  and  adapted 
to  the  progress  of  events" 

So  Mr.  Seward,  in  his  telegram  of  July  24,  1865, 
to  the  provisional  Governor  of  Mississippi,  said  "  the 
Government  of  the  State  Will  be  provisional  only 
until  the  civil  authorities  shall  be  restored  with  the 
approval  of  Congress"  And  again,  in  that  of  Sept. 
12,  1865,  a  little  more  than  a  year  ago,  to  Governor 
Marvin,  of  Florida,  he  says,  "  It  must,  however,  be 
distinctly  understood,  that  the  restoration  to  which 
your  proclamation  refers  will  be  subject  to  the  decision 
of  Congress"  And  the  whole  course  of  the  Presi- 
dent's conduct  was  in  conformity  with  it.  He  held  the 
inhabitants  of  those  States,  as  he  lawfully  might  and 
was  bound  to  do,  as  under  military  control,  and  with- 
out authorized  civil  government;  appointed  provisional 
Governors;  and  interfered  with,  and  dictated  terms 
for,  the  formation  of  their  local  governments.  All 
this  was  justifiable  only  upon  the  hypothesis  that  he 
was  exercising  his  military  authority,  in  order  to 
bring  the  people  into  loyal  relations  to  the  national 
Government;  but  it  was  entirely  inconsistent  with 
the  idea  that  the  States  had  any  lawfully  established 
civil  governments  under  the  Constitution.  For,  if 
they  had,  he  could  with  no  more  propriety  have 
thus  interfered  with  them  than  with  those  of  Penn- 
sylvania or  New  York. 


36  RECONSTRUCTION. 

And  he  continues  to  act  on  the  principle  that  no 
such  civil  governments  exist  in  those  States  down  to 
this  day.  On  what  other  principle  does  he  justify 
interfering  with  the  government  of  Lousiana,  or  call- 
ing the  Governor,  elected  by  her  people,  to  account 
for  his  conduct,  or  passing  judgment  upon  the  law- 
fulness or  unlawfulnes's  of  conventions  assembled 
there,  or  on  the  actions  of  State  officers  ?  And  by 
what  right  does  he  forbid  and  prevent  the  pirate 
Semmes  from  holding  the  judicial  office  to  which  he 
was  duly  appointed  under  the  authority  of  the  State 
Government  of  Alabama,  if  it  has  one  which  the  Gov- 
ernment of  the  United  States  is  bound  to  respect? 
And  by  what  authority  did  he  order  the  soldiery  of  the 
United  States  to  aid  and  assist  the  murderer  Monroe, 
in  putting  down  an  assembly  of  loyal  citizens  of  New 
Orleans,  if  the  State  of  Louisiana  is  under  a  regu- 
larly constituted  State  government'?  Can  he,  or 
would  he  dare  to,  order  the  troops  of  the  United 
States,  to-  come  to  the  help  of  the  city  police  in  any 
loyal  State,  unless  on  application  by  the  State  Gov- 
ernment 1  Any  right  of  such  interference  is  prohib- 
ited by  the  Constitution.  And,  if  the  President  were 
to  be  impeached  for  this  interposition  of  military 
force  in  New  Orleans,  the  only  justification  he  could 
set  up  would  be,  that  the  State  had  no  civil  govern- 
ment, but  one  in  subordination  to  his  military  author- 
ity as  commander-in-chief,  and  that  the  interposition 
was  necessary  for  the  preservation  of  good  order. 


STATES    UNDER   THE    CONSTITUTION.  37 

Considering,  then,  the  proposition  established,  that 
the  inhabitants  of  the  disloyal  States,  by  their  rebel- 
lion and  open  war  against  the  United  States,  had 
abandoned,  lost,  or  forfeited  all  civil  and  political 
rights  under  the  Constitution,  including  those  of  rep- 
resentation in  Congress,  the  next  inquiry  is  when  and 
in  what  manner  such  rights  might  revert  or  be  re- 
stored to  them. 

It  is  maintained  by  some  that  they  were  never  lost, 
but  continued  in  full  force  during  the  rebellion, — 
that  is  the  doctrine  of  the  minority  of  the  "  Committee 
on  Keconstruction  ;  "  but,  if  the  above  views  be  sound, 
it  is  obviously  erroneous,  and  needs  no  further  answer. 
Others  hold  that  although  these  rights  were  sus- 
pended or  in  abeyance  during  the  rebellion,  and  until 
peace  was  effectually  secured  by  the  exercise  of 
military  power,  yet  that,  when  that  was  attained,  the 
inhabitants  of  those  States  were  instantly  re-instated 
in  all  their  previous  rights  and  privileges,  and,  upon 
re-organizing  their  State  governments  so  as  to  bring 
them  within  the  requisitions  of  the  Constitution,  they 
became  entitled  to  representation  and  participation  in 
the  administration  of  the  national  Government. 
And  this,  perhaps,  is  the  general  belief  of  those  who 
advocate  the  immediate  recognition  of  those  rights. 

On  the  other  hand,  it  is  maintained  that  civil  and 
political  rights  and  privileges  under  the  Constitution, 
being  thus  forfeited  or  lost  by  the  voluntary  flagrant 
treason  of  the  inhabitants  of  those  States,  can  only 


449059 


38  RECONSTRUCTION. 

be  restored  by  the  permission  and  authority  of  that 
constitutional  power  against  which  they  rebelled,  and 
by  which  they  have  been  subdued 

It  is  much  to  be  regretted,  that  this  question  has 
been  too  often,  if  not  generally,  discussed  under  a 
form  which  is  believed  to  be,  not  only  no  true  state- 
ment of  the  real  issue,  but  one  tending  greatly  to 
distort  and  obscure  it ;  namely,  whether  such  States, 
by  reason  of  the  rebellion  of  their  inhabitants,  were 
to  be  accounted  as  in  or  out  of  the  Union.  No 
such  issue  has  arisen  upon  the  facts,  and  the  ques- 
tion in  that  form  is  worse  than  a  merely  profitless 
abstraction :  it  is  a  pernicious  play  upon  words. 

They,  during  and  after  the  rebellion,  were  States 
in  possession  of  defined  territories,  and  under  organ- 
ized governments  to  which  they  professed  allegiance. 
And  they  were  clearly  in  the  Union,  in  so  far  as 
their  territories,  people,  and  amenability  to  the 
Constitution  and  laws  of  the  Union  are  concerned. 
The  national  Government  still  maintained  its  right  of 
territorial  jurisdiction  over  them,  and  of  enforcing 
obedience  to  the  Constitution  and  the  laws,  as  fully 
as  it  ever  had ;  and  their  inhabitants  remained  citi- 
zens of  the  Union,  and  entitled  to  all  the  civil  and 
political  rights  and  immunities  which  they  ever  pos- 
sessed as  such,  excepting  those  which  they  had  for- 
feited or  lost  or  abandoned  by  their  treason. 

By  that  treason,  each  inhabitant  has  forfeited  his 
liberty  and  life  as  the  penalty  of  his  crime,  if  the 


STATES    UNDER    THE    CONSTITUTION.  39 

Government  shall  see  fit  to  exact  it  by  due  process  of 
law ;  but,  until  arrest  and  sentence  under  such  con- 
viction, he  is  still  entitled  to  protection  and  immunity, 
and  the  enjoyment  of  all  the  civil  rights  which  he 
ever  had  resulting  from  such  merely  individual  citi- 
zenship. And  he  may  be  restored  to  the  future 
undisturbed  enjoyment  of  them  by  an  act  of  amnesty 
of  the  General  Government,  or  by  a  pardon  from 
the  Executive  after  conviction  and  sentence. 

But,  with  regard  to  the  political  rights  of  the 
inhabitants  of  a  State  in  its  corporate  political  capa- 
city, —  those  of  representation  in  the  House  and 
Senate,  for  instance,  —  these,  as  has  above  been 
shown,  do  not  rest  upon  nor  result  from  their  individ- 
ual citizenship,  as  citizens  of  the  United  States  merely, 
but  depend  also  upon  the  political  relations  which  the 
/State  bears  to  the  Union,  and  cease  to  exist  whenever 
it  has  suspended,  lost,  forfeited,  or  abandoned  the 
rights  belonging  to  it  as  a  State  in  its  normal  relations 
to  the  Government;  and  can  be  restored  only  by 
restoration  of  the  State  to  those  relations. 

Such  being,  then,  the  condition  of  the  States  lately 
in  rebellion,  what  are  the  rights  and  duties  of  the 
General  Government  in  regard  to  them,  and  to  the 
restoration  of  their  relations,  rights,  and  privileges  as 
equal  States  in  the  Union  \ 


40  RECONSTRUCTION. 


CHAPTER  IV. 

POWERS  AND  DUTIES  OF  GENERAL  GOVERNMENT  IN  RE- 
LATION TO  THE  STATES  IN  REBELLION,  AND  WHEN 
LEFT  BY  THE  REBELLION  WITHOUT  ORGANIZED  GOV- 
ERNMENTS UNDER. THE  CONSTITUTION;  AND  TO  RES- 
TORATION OF  THEIR  POLITICAL  PRIVILEGES  UNDER 
IT.  — RIGHTS  CONSEQUENT  UPON  WAR, 

THERE  is  no  express  provision  in  the  Constitution 
relating  to  the  rebellion  of  the  inhabitants  of  a  State 
in  its  corporate  capacity  against  the  authority  of  the 
United  States,  nor  to  any  penal  or  other  conse- 
quences resulting  from  such  rebellion,  excepting  in 
so  far  as  any  citizen  of  the  State  may  be  punishable 
individually  for  voluntarily  participating  in  it,  as 
above  suggested.  And  hence  it  has  been  argued, 
that,  in  such  cases,  the  General  Government  has  no 
power  to  compel  obedience  or  fulfilment  of  the  obli- 
gations which  the  Constitution  imposes  upon  the 
several  States. 

This  was  the  theory  adopted  by  Mr.  Buchanan  in 
the  most  perilous  crisis  of  the  country's  history,  and 
from  which  the  leaders  of  the  rebellion  derived  their 
chief  encouragement  to  resist  the  national  authority, 
which,  if  duly  exerted,  might  have  saved  her  from 
the  terrible  struggle  that  ensued. 


POWERS  OF  GENERAL  GOVERNMENT.       .41 

And  it  is  the  argument  still  of  secessionists  and 
their  sympathizers.     A  moment's  consideration,  how- 
ever, seems  sufficient  to   expose  its  fallacy.     Upon 
looking  into  the  Constitution,  it  is  found  to  contain, 
among  others,  the  following  express  provisions,  apply- 
ing exclusively  to  the  States  in  their  political  corpo- 
rate capacities  as  such,  namely:  "  The  United  States 
shall  guarantee  to  every  State  in  this  Union  a  repub- 
lican form  of  government."     "  No  State  shall  enter 
into    any   treaty    or   alliance    or    confederation,"   or 
"  enter  into  any  agreement  or  compact  with  another 
State  or  with  any  foreign  power."     "  The  citizens  of 
eacft  State  shall  be  entitled  to  all  the  privileges  and 
immunities  of  the  several  States."     "  The  Constitution 
and  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof,  shall  be  the  supreme  law 
of  the  land."     "  The  President  shall  take  care  that  the 
laws  shall  be  faithfully  executed"     And  "  Congress 
shall   have   power  for   calling  forth   the   militia   to 
execute  the  laws  of  the  Union,  and  suppress  insur- 
rection  and  repel  invasion."     And,  in   the   face    of 
these  provisions,  is  it  possible  to  believe  that  any  one 
State  may,  at  pleasure,  impose  a  despotic  or  monarch- 
ical government  upon  an  unwilling  and  oppressed 
portion  of  its  people?   or  may  enter  into   a   treaty 
of  alliance,  offensive  and  defensive,  with  a  foreign 
nation?   or  into  one  of  commerce,  with  discriminat- 
ing privileges  in  its  favor,  destructive  of  the  interests 
of  the  other  States?  or  may  prohibit  the  citizens  of 


•12  -  RECONSTRUCTION. 

the  other  States  from  enjoying  the  same  privileges 
and  immunities  with  its  own  within  its  borders,  and 
expose  them  to  loss  of  liberty  and  life  upon  undertak- 
ing to  reside  within  them  I  or  may  openly  violate  the 
Constitution  or  the  laws  of  the  land,  and  set  the 
Government  of  the  United  States  at  defiance  "?  —  and 
that  there  is  no  redress,  but  that  these -violations  of 
the  Constitution  must  be  quietly  acquiesced  in  as 
remediless?  Are  these  provisions  —  so  express,  and 
so  obviously  essential  to  the  internal  peace,  the 
prosperity,  the  unity,  the  sovereignty,  and  security  of 
the  nation,  and  without  the  power  to  compel  the 
fulfilment  of  which  it  would  cease  to  be  a  natidh  — 
meaningless  words,  a  mere  brutum  fulmen  "  of  sound 
and  fury,  signifying  nothing  "  I  Such  a  construction 
of  the  Constitution  must  be  accounted  palpable  non- 
sense upon  any  other  theory  than  that  of  the  absolute 
right  of  secession.  What,  then,  is  the  remedy,  and 
•what  are  the  consequences  involved  in  the  application 
of  it? 

And  it  is  obvious  that  war  is  the  only  remedy. 
Any  effective  denial  or  violations  of  these  provisions 
of  the  Constitution  by  any  State  must  be  by  forcible 
resistance  of  the  lawful  officers  of  the  United  States, 
civil  or  military,  engaged  in  the  duty  of  compelling 
compliance  with  them;  for  so  long  as  they  should 
continue  to  be  practically  obeyed,  no  mere  protest 
against  their  obligation,  by  any  mere  manifesto  or 
proclamation,  would  justify  recourse  to  force  of  arms, 


POWERS  OF  GENERAL  GOVERNMENT.        43 

» 

any  more  than  would  the  mere  declaration  of  oppo- 
sition to  the  Government,  and  of  an  intention  to 
resist  its  laws  by  force  of  arms,  amount  to  treason 
under  the  Constitution.  And,  if  such  forcible  resist- 
ance be  resorted  to  by  a  State,  the  case  presented 
becomes  at  once  that  of  an  organized  government, 
possessing  territorial  jurisdiction,  and  asserting  sov- 
ereignty and  independence  internal  and  external,  and, 
claiming  the  personal  allegiance  of  its  citizens  as 
paramount  to  all  other  allegiance,  taking  up  arms  to 
repel  the  attempt  of  another  sovereign  State  to 
enforce  obedience  to  its  asserted  authority.  And 
this  is  nothing  less  than  actual  war  —  civil  war 
indeed,  but  none  the  less  actual  war — between 
sovereign  States,  or  those  claiming  to  be  such,  and 
attended  with  all  the  attributes  and  consequences  of 
war  according  to  the  public  law,  or  law  of  nations. 

Now,  one  of  the  best-established  principles  of  that 
code  is,  that,  as  there  is  no  acknowledged  arbiter  or 
judge  between  the  parties  engaged  in  war,  the  victor 
has  of  necessity  the  right  to  dictate  the  terms  of 
peace,  provided  that  they  be  not  inconsistent  with 
humanity  and  the  generally  recognized  principles  of 
that  code.  And  this  rule,  under  certain  limitations, 
is  as  applicable  to  a  civil  war  as  to  one  between 
sovereign  States  of  no  antecedent  connections  with 
each  other. 

Vattel  thus  lays  down  the  law  of  nations  on  this 
subject:  "A  civil  war  breaks  the  bands  of  society 


44  KECONSTKUCTION. 

» 

and  government,  or  at  least  suspends  their  force  and 
effect;  it  produces  in  the  nation  two  independent 
parties,  who  consider  each  other  as  enemies,  and 
acknowledge  no  common  judge.  These  two  parties, 
therefore,  must  necessarily  be  considered  as  constitut- 
ing, at  least  for  a  time,  two  separate  bodies,  two 
distinct  societies.  Having  no  common  superior  to 
judge  between  them,  they  stand  in  precisely  the  same 
predicament  as  two  nations  who  engage  in  a  contest, 
and  have  recourse  to  arms." 

Wheaton  lays  down  the  law  to  the  same  effect. 
(Dana's  ed.,  §  296.) 

And  it  has  been  expressly  recognized  and  enforced 
by  the  Supreme  Court  of  the  United  States  in  the 
Prize  Cases,  2  Black's  U.S.  Rep.,  p.  638,  in  reference 
to  the  late  rebellion. 

War,  therefore,  being  the  only  possible  solution  of  a 
controversy  between  one  of  the  States  and  the  Gov- 
ernment of  the  United  States,  involving  absolute 
denial  and  violation  of  the  duties  and  obligations  of 
the  State,  —  the  only  tribunal  to  which  appeal  for 
a  final  decision  could  be  made,  —  neither  necessity 
nor  propriety  required  that  it  should  be  set  forth  in 
the  Constitution,  as  the  means  of  determining  the 
issue  made  between  them,  any  more  than  they  would 
require  the  statement  in  a  civil  contract,  that,  if  either 
should  fail  to  fulfil  the  obligation  which  it  imposed 
upon  him,  the  other  should  have  the  right  to  appeal 
to  a  judicial  tribunal  for  redress. 


POWERS  OF  GENERAL  GOVERNMENT.        45 

In  this  case,  both  parties  did  thus  appeal  to  the  only 
and  ultimate  tribunal  between  contending  States,  and 
took  upon  themselves  respectively  the  consequences 
of  its  judgment. 

If  that  judgment  had  been  in  favor  of  the  confed- 
erate States,  the  sovereignty,  independence,  and  right 
of  secession  which  they  asserted,  would  have  been 
vindicated,  and  finally  adjudged  to  them,  as  matter  of 
future  indisputable  right.  And  the  United  States 
would  not  only  have  been  bound  by  that  decision,  but 
might  also  have  been  justly,  by  the  law  of  nations, 
compelled  to  enter  into  such  stipulation,  and  give  such 
security,  as  the  confederate  States  might  reasonably 
exact,  to  prevent  the  United  States  from  ever  there- 
after re-asserting  claims  to  their  allegiance  or  obedi- 
ence. But  the  judgment  was  against  them,  and  a 
corresponding  just  right  accrued  to  the  United  States, 
not  only  to  enforce  obedience  to  the  duties  imposed  by 
the  Constitution,  and  keep  the  confederate  States 
under  military  control  until  the  peaceful  fulfilment  of 
them  could  be  relied  upon ;  but  also  to  require  full 
indemnity  for  the  wrongs  and  losses  caused  by  the  re- 
bellion, including  payment  of  the  debt  incurred  in 
suppressing  it,  if  the  confederate  States  could  re-im- 
burse  the  amount  of  it,  and  any  security  which  reason 
and  justice  might  show  to  be  necessary  to  .prevent 
any  future  perpetration  of  the  crime. 

But  the  powers  of  the  United  States,  as  victors  in 
such  a  contest,  are  by  no  means  as  unlimited  as  they 


46  RECONSTRUCTION. 

might  be  in  a  war  with  another  nation  of  acknowl- 
edged independence.  They  cannot  be  considered  as 
extending  to  the  absolute  subjection  and  permanent 
control  of  the  confederate  States  as  conquered  terri- 
tories, nor  to  the  imposition  of  any  such  unqualified 
terms,  conditions,  or  exactions  as  the  exercise  of  more 
sovereign  will  and  power  might  justify  in  such  other 
war. 

The  power  to  wage  war  upon  a  State  in  rebellion, 
for  the  preservation  of  the  Union,  is  a  constitutional 
power  necessarily  invested  in  the  Government  solely 
for  that  purpose,  and  limited  by  that  necessity.  It 
cannot,  therefore,  be  exercised  for  any  other  end,  nor 
beyond  the  means  justly  and  reasonably  required  for 
its  accomplishment.  It  cannot  justify  the  holding  of 
the  territories  of  the  State  as  conquered  or  as  prov- 
inces under  military  rule,  or  the  depriving  them  of 
the  rights  of  civil  government,  or  of  their  previous 
constitutional  privileges,  any  further  than  may  be 
necessary  to  enforce  present  obedience  to  the  Consti- 
tion  and  the  laws,  and  for  security  against  danger 
of  future  like  disobedience  or  revolt.  But  so  far  as 
the  attainment  of  these  ends  may  render  the  occupa- 
tion and  government  of  the  State  by  military  rule, 
or  the  withholding  of  any  civil  rights  and  privileges, 
essential,  so  far  the  right  of  such  occupation,  govern- 
ment, and  authority  is  as  obviously  and  indisputably 
justifiable  as  was  the  right  of  waging  the  war  to  ob- 
tain those  ends.  And,  as  above  stated,  the  Govern- 


POWERS  OF  GENERAL  GOVERNMENT.        47 

merit,  as  the  victor,  must,  by  the  necessity  of  the  case, 
be  the  sole  judge  of  such  necessity  and  of  the  proper 
security  to  be  demanded ;  being  governed  in  the  exer- 
cise of  its  discretion  by  the  limits  of  constitutional 
authority,  as  above  stated. 

This  view,  it  is  believed,  furnishes  a  satisfactory 
answer  to  the  insensate  clamor  raised  against  the  ad- 
vocates of  the  powers  of  the  General  Government  as 
founded  upon  the  rights  of  war,  and  by  which  dema- 
gogues and  sympathizers  in  rebellion  have  attempted 
to  darken  the  understanding  of  the  people,  and  lead 
them  to  believe  that  the  assertion  of  such  powers  is 
nothing  short  of  advocacy  of  an  usurpation,  tram- 
pling the  Constitution  under  the  heel  of  military  des- 
potism, instead  of  being,  as  it  truly  is,  a  vindication 
of  the  only  means  which  the  Government  possesses  of 
self-preservation,  and  for  maintaining  the  Constitution 
and  the  life  of  the  nation  secure  against  future  like 
outrage  and  danger. 

It  surely  cannot  be  pretended  with  any  show  of 
reason,  that  the  States  recently  in  rebellion  could  be- 
come entitled  to  immediate  restoration  of  their  former 
political  powers  and  privileges,  merely  upon  the  lay- 
ing-down of  their  arms  and  professions  of  submission 
t3  the  Constitution  and  the  laws,  if  it  should  be 
satisfactorily  apparent  that  such  surrender  and  pro- 
fessions were  a  mere  subterfuge  in  order  to  obtain  a 
suspension  of  hostilities  with  the  intention  of  renew- 
ing them  at  a  more  favorable  opportunity,  or  if  they 


48  RECONSTRUCTION. 

were  made  with  the  view  of  using  those  political 
powers  and  privileges  as  the  means  of  accomplishing 
in  another  mode  the  same  purposes  for  which  they 
had  been  waging  the  war. 

This  would  be  to  render  the  contest,  and  the  victory 
purchased  at  such  cost  of  life  and  treasure,  barren 
and  worthless  indeed.  Obvious  justice  and  the  hum- 
blest common  sense  alike  dictate  that  the  right  to 
secure  peace  and  future  security,  the  only  desired 
fruits  of  the  conflict,  is  no  less  clear  than  the  right  to 
fight  for  them ;  and  that,  if  it  was  humane  and  just 
for  the  nation  to  enter  upon  the  war  and  sacrifice  the 
lives  of  such  hecatombs  of  the  best  and  bravest  of  her 
sons  and  such  incalculable  treasure  to  protect  the 
Constitution  and  the  Union  from  violation  and  dis- 
ruption, it  can  be  no  less  humane  and  just  to  exact, 
as  the  condition  of  restoring  her  rebellious  children 
to  their  former  political  powers  and  privileges  under 
them,  reasonable  security  against  the  repetition  of  the 
crime,  whether  in  the  field  of  battle  or  in  the  halls 
of  legislation. 

Nor  in  this  connection  is  it  to  be  forgotten,  that  the 
potitical  powers  and  privileges  to  which  immediate 
restoration  is  thus  claimed  are  not  any  which  the 
Government  of  the  United  States  has  voluntarily 
taken  away  from  the  rebel  States,  either  as  punish- 
ment for  their  offence  or  as  indemnity  for  the  future ; 
but  are  those  only  which  they  themselves  deliberately 
and  wickedly  cast  away,  repudiated  and  abandoned, 


POWERS    OF    GENERAL    GOVERNMENT.  49 

in  perpetration  of  the  blackest  and  most  fearful  crime 
known  in  human  society,  —  the  blackest  and  most 
fearful,  because  involving,  not  only  the  breach  of  the 
most  solemn  obligations,  but  of  necessity  also  the 
ruin  of  numberless  happy  families,  the  sacrifice  of 
hosts  of  precious  lives,  the  loss  of  countless  treasures 
of  national  wealth  and  industry,  —  the  crime  of  par- 
ricide against  the  most  humane  and  parental  govern- 
ment the  world  ever  looked  upon,  against  which  they 
could  not  allege  one  instance  of  wrong  or  oppression ; 
the  crime  of  fratricide,  involving  the  shedding  of  tor- 
rents of  brothers'  blood,  the  making  desolate  of  hun- 
dreds of  domestic  hearths,  and  the  shrouding  of 
thousands  of  homes  in  mourning  to  terminate  only  in 
the  grave.  Surely,  it  is  not  for  those  guilty  of  crimes 
like  these,  with  hands  stained  with  the  blood  of  their 
victims,  and  their  hearts  and  mouths  full  of  bitterness 
and  hatred  of  those  who  upheld  the  Constitution 
and  the  laws  in  this  terrible  strife,  arrogantly  to  de- 
mand immediate  restoration  of  the  powers  and  privi- 
leges so  impiously  trampled  under  foot,  that  they  may 
resume  their  former  unhappily  paramount  influence 
and  power  in  the  councils  of  the  nation  whose  life 
they  have  thus  sought  to  destroy ;  nor  to  resent  as  an 
insult  the  requisition  of  those  whom  they  have  thus 
cruelly  and  grievously  wronged,  that  some  security  be 
given  against  the  repetition  of  their  crime. 

Suppose,  that,  in  the  war  of  the  revolution,  England 

7 


50  RECONSTRUCTION. 

had  been  successful  and  conquered  the  revolting  colo- 
nies, and  re-assumed  her  territorial  powers  and  juris- 
diction over  them.  What  question  could  there  be  of 
her  power  to  impose  such  terms  as  she  should  think 
proper,  for  restoration  to  them  of  their  previous  colo- 
nial rights  under  their  charters,  notwithstanding  that, 
upon  the  laying-down  of  their  arms,  they  were  indi- 
vidually restored  to  the  rights  of  citizenship  until  con- 
viction of  treason  by  process  of  law  ] 

Or  ifl  a  large  portion  of  the  inhabitants  of  any  one 
State,  composing  entire  counties  or  districts  entitled 
to  representation  in  the  legislature,  should  rise  in 
rebellion  and  expel  the  State  government  from  these 
territories,  carry  on  civil  war,  finally  terminating  in 
their  subjection,  what  reasonable  doubt  could  exist  of 
the  right  to  take  possession  of  those  territories,  and 
hold  them  until  peace  and  order  should  not  only  be 
presently  restored,  but  also  made  reasonably  perma- 
nent, by  continuing  the  force  necessary  for  that  pur- 
pose so  long  as  such  necessity  should  continue,  or 
until  guaranties  should  be  given  such  as  to  render  it 
needless  ;  the  individual  citizens  meanwhile  being  left 
in  the  ordinary  enjoyment  of  all  their  civil  rights, 
excepting  those  only  of  representation  in  the  State 
government "?  How  can  the  war  be  said  to  be  finally 
terminated  until  absolute  security  is  obtained  ? 

And  upon  what  principle  can  like  authority  be 
denied  to  the  Government  of  the  United  States  over 


POWERS  OF  GENERAL  GOVERNMENT.        51 

inhabitants  of  the  States  under  its  authority,  until 
peace  and  the  security  for  life,  liberty,  and  property 
of  all  loyal  citizens  within  their  borders  shall  be 
secured,  leaving  to  such  inhabitants  the  enjoyment  of 
all  other  civil  rights  but  those  which  entitle  them  to 
take  part  in  the  Government  1 

The  principle  so  confidently  maintained,  that  the 
inhabitants  of  the  rebel  States,  upon  the  laying-down 
of  their  arms,  became  at  once  restored  to  all  their  po- 
litical rights  as  States,  as  well  as  their  former  civil  ones 
as  citizens,  until  convicted  of  treason,  involves  the 
palpable  and  enormous  absurdity  that  they  are  thus 
restored,  although  such  surrender  was  not  only  en- 
forced upon  them  and  was  altogether  involuntary,  as 
is  the  truth  here,  but  was  with  intent  of  resuming 
their  hostile  attitude  again  as  soon  as  they  could 
gather  strength  for  the  purpose,  and  although  the 
danger  of  such  resumption  was  palpably  imminent, 
and  although,  in  the  mean  time,  they  were  perpetrating 
upon  loyal  citizens  atrocious  cruelties,  from  which  the 
ordinary  protection  of  civil  law  was  entirely  inade- 
quate, and  evinced  a  settled  determination  to  continue 
such  perpetration.  The  case  need  but  be  stated  to 
make  its  absurdity  self-evident. 

Upon  the  principles  of  public  law,  therefore,  appli- 
cable, to  this  extent,  to  civil  as  well  as  to  foreign 
war,  as  founded  in  the  absolute  necessity  of  the  case, 
the  General  Government  has  the  sole  power  and  the 


52  RECONSTRUCTION- 

right  to  determine  when  the  conflict  has  ceased,  and 
upon  what  terms  and  conditions,  consistent  with  the 
objects  of  the  war,  the  inhabitants  of  the  States  in 
rebellion  shall  be  restored  to  political  equality  as 
States  in  the  Union. 


POLITICAL    RIGHTS    AND    PRIVILEGES.  53 


CHAPTER  V. 

POLITICAL  EIGHTS  AND  PRIVILEGES  OF  REBEL  STATES 
FORFEITED  AND  LOST.— RESTORATION  MUST  BE  BY 
ACT  OF  GOVERNMENT.— LAW  OF  SELF-PRESERVATION. 

BUT  independently  of  the  right  of  the  General  Gov- 
ernment to  prescribe  the  conditions  upon  "which  the 
inhabitants  of  the  rebel  States  may  be  restored  to 
equal  political  privileges  with  the  other  States  under 
the  Constitution,  as  one  resulting  from  the  war,  there 
are  several  other  grounds  upon  which,  as  is  believed, 
it  may  be  satisfactorily  vindicated. 

As  the  Constitution  contains  no  express  provisions 
determining  the  status  of  the  inhabitants  of  a  State 
in  rebellion,  or  their  right  to  restoration  of  political 
privileges  as  a  State  under  the  Constitution,  after 
subjugation  or  submission  to  the  authority  of  the 
General  Government,  such  restoration  is  necessarily 
one  of  construction,  or  implied  right  or  power,  to  be 
settled  upon  general  principles.  And  the  proposition 
which  first  suggests  itself  is  that  the  power  of  decid- 
ing upon  the  right  of  such  restoration,  and  upon  the 
terms  of  it,  resides  in  the  General  Government  as  mat- 
ter of  absolute  and  inevitable  necessity. 

The  Constitution  is  the  supreme  law,  and  the  Gov- 


54  RECONSTRUCTION. 

ernment  established  by  it  was  for  the  purpose  of  car- 
rying that  law  into  effect.  The  Government  is  the 
sole  agent  of  the  people  for  this  purpose,  and  so  has 
supreme  authority  to  decide  every  question  arising 
under  it,  in  the  particular  modes  pointed  out  by  the 
Constitution  where  such  questions  admit  of  their 
application,  and  by  its  own  action  where  none  such 
are  provided.  The  Government  represents  the  whole 
people  of  the  United  States  in  all  matters  of  law 
arising  under  the  Constitution,  as  in  all  other  things 
provided  for  by  it;  and  has  not  only  the  power,  but 
is  under  the  obligation,  "  to  provide  for  the  common 
defence  and  general  welfare  of  the  United  States," 
and  "  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  power, 
and  all  other  powers,  vested  by  the  Constitution  in 
the  government  of  the  United  States." 

The  nature  of  the  political  relations  of  the  several 
States  to  the  United  States  is  obviously  pure  matter 
of  law.  Any  question  concerning  the  violation  or 
forfeiture  of  them,  or  the  right  of  restoration  to  them 
if  lost  or  forfeited,  is  also  a  pure  question  of  law, 
and  one  which  must  of  necessity  be  decided.  All 
these  and  cognate  questions  are  not  outside  of  the 
Constitution,  but  are  questions  under  it,  affecting  its 
existence  and  the  existence  of  the  Union,  and  must 
be  decided:  the  nation's  life  is  at  stake  upon  them. 
If,  then,  no  other  tribunal  has  been  appointed  for 
their  decision,  the  General  Government  has  supreme 


POLITICAL   RIGHTS    AND    PRIVILEGES.  55 

authority  to  decide  them :  or,  if  they  are  of  a  nature 
to  be  ultimately  decided  by  the  Supreme  Court,  still 
the  present  decision,  for  the  time  being,  until  the 
question  can  be  brought  before  that  tribunal,  if  it 
ever  could  be,  must  be  by  the  General  Government  ; 
for  a  present  decision  one  way  or  the  other  by  it  must 
be  made.  Inaction  is  as  much  a  decision  against  the 
right,  as  action  is  one  in  favor  of  it.  It  has  therefore 
the  final,  or,  if  not  the  final,  the  immediate  right  of 
decision ;  and  such  decision  is  its  present  first  duty 
under  the  clauses  above  stated.  No  one  will  dispute 
that  the  settlement  of  these  questions  is  essential  to 
"  the  common  defence  and  general  welfare  of  the 
United  States."  ~No  one  can  question  that  Congress 
is  invested  with  full  powers  to  "  provide  for  that 
defence  and  welfare."  And  no  one  can  point  out  any 
other  tribunal  by  which  the  nature  of  them  can  be 
adjudged,  and  the  proper  remedy  applied. 

The  action  of  Congress,  therefore,  seems  not  only 
justifiable,  but  an  absolute  necessity.  All  these  ques- 
tions being  obviously  matters  of  legal  right,  —  of  law 
purely,  —  the  decision  and  the  provision  for  them 
must  of  like  necessity  rest  with  the  law-making 
power,  —  that  is,  the  Congress,  —  or  with  the  judiciary 
And  nothing  can  seem  more  manifestly  in  contradic- 
tion to  all  legal  principle,  or  a  plainer  usurpation, 
than  for  the  executive  department  of  the  Government, 
whose  office  is  confined  to  the  administration  of  the 
law,  to  assume  the  right  of  deciding  upon  the  nature 


56  RECONSTRUCTION. 

of  those  relations  and  the  manner  of  their  restora- 
tion. 

The  next  proposition  is,  that  State  rights,  being 
corporate  rights  or  privileges  or  franchises  only,  be- 
longing to  the  States  as  subjects  of  the  national  Gov- 
ernment, and  being  lost  or  forfeited  by  their  rebellion 
against  it,  never  could  revert  or  be  recovered  by  their 
subjugation  or  submission;  but  any  restoration  of 
them  must  be  by  a  grant  from  the  sovereign  power 
which  created  them. 

State  rights  and  powers  are  such,  and  such  only, 
as  were  granted,  defined,  or  recognized  by  the  Con- 
stitution. The  States  are  in  no  sense  sovereign 
under  it,  nor  are  they  in  any  part  of  it  styled  or  rec- 
ognized to  be  such.  They  have  no  right  to  decide 
any  question  under  it  in  the  last  resort^  but  are  always 
amenable  and  subject  to  the  final  decision  of  the 
General  Goverment  upon  it.  In  certain  cases  they 
may  sue  and  be  sued,  and  in  such  cases  must  submit 
to  the  judgment  of  the  supreme  judicial  authority,  like 
any  other  subject.  They  are  component  parts  of  the 
nation  as  "  bodies  politic,"  or  "  corporate  bodies,"  or 
"political  societies"  as  Mr.  Madison  styles  them,  in  the 
same  manner  as  individual  citizens  are  component 
parts  of  it.  However  distasteful  the  truth  may  be  to 
the  magniloquent  advocates  of  State  rights,  the  truth, 
nevertheless,  is,  that  the  States  are  subjects  of  the  Gov- 
ernment established  by  the  Constitution,  and  bound 
by  the  law  in  the  same  manner  as  other  subjects. 


POLITICAL    RIGHTS    AND    PRIVILEGES.  57 

The  right  of  representation  in  Congress,  and  so  to 
participate  in  the  administration  of  the  General  Gov- 
ernment, was  not  one  belonging  to  them  in  their 
original  capacities  when  the  Constitution  was  formed, 
nor  one  created  by  them  as  the  framers  of  the  Con- 
stitution. It  was  one  conferred  upon  and  granted 
to  them  by  the  whole  people  of  the  United  States,  in 
the  formation  of  that  frame  or  structure  of  govern- 
ment. The  people  of  the  United  States  was  the 
grantor,  and  the  several  States  respectively  were  the 
grantees,  of  that  right.  It  was  not  one  which  they 
had  the  power  to  lay  down  and  re-assume  at  pleasure. 
Such  a  principle  would  be  obviously  destructive  of 
a  government  created  for  the  ruling  and  preservation 
of  a  nation ;  but  the  right  was  given  and  made  de- 
pendent upon  the  existence  and  fulfilment  of  certain 
relations  and  conditions  prescribed  by  the  Constitu- 
tion, and  in  such  manner  that  it  could  not  exist  unless 
they  were  complied  with. 

These  rights,  then,  were  merely  corporate  rights, 
belonging  to  the  States  only  as  political  corporations 
or  societies,  and  implying  corresponding  allegiance 
and  obedience  to  the  Government  from  which  they 
were  derived,  in  the  same  manner  as  do  the  rights 
and  privileges  of  any  other  corporations  created  by  a 
civil  government.  And  it  is  not  perceived  why  they 
may  not  be  lost  and  forfeited  by  misuser  or  nonuser, 
in  the  same  manner  as  may  be  any  other  corporate 
rights  created  by  such  governments.  Nor  is  it  seen 


58  RECONSTRUCTION. 

why  Congress  might  not,  in  the  exercise  of  its 
supreme  power  of  deciding  or  providing  means  for 
deciding  all  questions  of  law  arising  under  the  Con- 
stitution, have  provided  a  mode  of  trying  and  deter- 
mining questions,  like  the  present,  concerning  the 
forfeiture  or  loss  by  States  of  their  political  rights 
and  franchises  under  it. 

No  such  tribunal,  indeed,  could  be  necessary  in  an- 
ticipation of  flagrant  rebellion  and  civil  war,  in  which 
such  civil  rights  and  privileges  would  be  not  only 
renounced  and  abandoned,  but  the  wealth  and 
strength  derived  from  their  enjoyment  and  the  or- 
ganization on  which  they  were  founded,  were  to  be 
the  chief  means  of  sustaining  the  contest  against  the 
Government  which  created  them.  Such  rebellion  and 
war,  as  has  before  been  shown  and  seems  to  be  self- 
evident,  is,  of  necessity,  a  destruction  of  any  corporate 
rights  or  franchise  under  the  Government  thus  assailed 
by  the  corporation  itself.  And,  no  other  tribunal 
having  been  established  to  pass  in  judgment  upon 
such  forfeiture  or  destruction,  the  power  of  doing  so, 
if  any  judgment  were  needed,  necessarily  resides  in 
the  Government  itself  in  political  as  well  as  in  legal 
questions. 

Another  ground  upon  which  these  political  rights 
may  be  accounted  as  forfeited  or  lost  is,  that,  as  above 
shown,  they  were  granted  upon  condition  of  the  con- 
tinued existence  of  certain  prescribed  relations  to  the 
United  States  and  obedience  to  the  Constitution  and 


POLITICAL   RIGHTS    AND    PRIVILEGES.  59 

the  laws ;  and,  that  condition  having  been  voluntarily 
and  entirely  broken,  they  were  by  the  terms  of  the 
grant,  and  the  principle  universally  recognized  in 
continuing  grants  upon  conditions,  totally  and  irrevo- 
cably forfeited  and  lost.  And,  being  so  forfeited  or 
lost,  every  principle  and  analogy  of  civil  law  and  of 
common  sense  dictates  that  restoration  of  it  must 
depend  upon  the  assent  of  the  other  party ;  namely, 
the  people  who  granted  it,  and  who,  for  all  purposes 
of  upholding  the  Constitution  and  protecting  the  life 
and  welfare  of  the  nation  under  it,  are  represented  by 
the  General  Government,  which  is  invested  with 
plenary  and  final  power  to  determine  all  questions 
arising  under  it. 

All  analogy  sustains  this  view  of  the  subject.  In 
all  cases  of  contract,  founded  upon  conditions,  breach 
of  the  conditions  is  finally  fatal  to  all  rights  under  it, 
and  their  restoration  could  only  be  obtained  by  re- 
mission of  the  forfeiture  by  the  other  party.  So,  in 
cases  of  treason  once  committed,  no  penitence,  no 
proffered  return  to  allegiance,  no  obedience  however 
entire,  can  wash  away  the  crime :  pardon  from  the 
government  whose  authority  was  violated  can  alone 
restore  the  guilty  party  to  immunity  in  his  former 
civil  rights  of  property,  liberty,  and  life.  And  it 
would  be  strange  indeed,  if  criminals  thus  under  the 
ban  of  the  law,  as  having  forfeited  all  their  personal 
rights,  including  that  of  life  itself,  may  still  retain, 
in  their  political  corporate  capacity  as  a  State,  their 


60  RECONSTRUCTION. 

privileges  and  power  of  participation  in  the  adminis- 
tration of  the  government  which  they  sought  and 
may  be  still  seeking  to  destroy,  —  strange  indeed,  that 
the  government  should  be  invested  with  full  power 
to  protect  itself  against  danger  from  their  treason  as 
individuals  by  the  extreme st  punishment,  but  have 
none  whatever  to  protect  itself  against  the  infinitely 
greater  danger  resulting  from  treason  in  their  politi- 
cal corporate  capacities  as  component  parts  of  itself; 
none  to  expel  the  most  dangerous  internal  enemy, 
but  must  continue  to  maintain  and  nourish  the  viper 
gnawing  at  its  heart. 

It  is  no  answer  to  pretend  that  the  law  against  trea- 
son subjecting  every  individual  guilty  to  loss  of  life  is 
a  sufficient  protection,  as  it  may  be  administered  to  the 
extent  necessary  for  preventing  repetition  of  the  crime ; 
for,  however  sufficient  that  defence  might  be  in  ordi- 
nary cases  of  insurrection  or  conspiracy  by  compara- 
tively few  individuals  acting  in  their  individual 
capacities,  it  is  utterly  and  obviously  incompetent  and 
futile  in  the  case  of  a  rebellion  by  the  people,  or  a 
large  majority  of  the  people,  of  a  State,  acting  in  its 
corporate  capacity.  Such  punishment  at  the  utmost 
could  be  extended  to  a  few  only  of  those  of  most 
prominent  influence,  position,  or  criminality.  It  could 
never  reach  the  mass  of  voters,  who  would  be  still  left 
to  the  uninterrupted  and  practically  unassailable 
enjoyment  of  their  most  important  political  rights, — 
and  those  not  only  the  most  dangerous,  but,  it  may  be, 


POLITICAL   RIGHTS    AND    PRIVILEGES.  61 

the  only  ones  by  the  exercise  of  which  they  could 
peril  the  safety  of  the  Government  and  the  peace  of 
the  nation.  Upon  such  a  theory,  the  Government 
would  be  utterly  powerless  to  protect  itself  from  the 
hostility  of  traitors  red-handed  from  the  battles  of 
rebellion,  seeking  to  accomplish  by  political  machina- 
tions the  destruction  they  failed  to  accomplish  on  the 
field.  It  would  seem  that  no  merely  technical  con- 
struction of  the  Constitution,  rendering  the  Govern- 
ment so  feeble  and  incapable  of  self-protection,  and 
for  accomplishing  the  great  ends  of  national  unity, 
peace,  and  prosperity  for  which  it  was  created, 
can  be  accepted ;  but  that  the  common  sense  and 
the  instinct  of  self-preservation  alike  cry  out  against 
it. 

Again,  if  the  theory  referred  to  be  sound;  if  the 
inhabitants  of  a  State  may  thus  rise  in  rebellion,  and, 
after  waging  a  bloody  and  costly  war  against  the 
Government,  may,  by  the  mere  laying-down  of  their 
arms  and  seemingly  sincere  professions  of  obedience, 
assert  the  absolute  right  of  restoration  to  political 
station  and  power  in  the  national  administration, — it 
follows  that  the  nation  has  no  protection  from  revolt 
and  national  embarrassment  or  ruin  beyond  the  mere 
pleasure  of  the  inhabitants  of  any  State,  or  number  of 
States,  to  keep  the  peace ;  for  if  they  may  rebel,  and, 
being  conquered,  may  resume  all  their  former  rights, — 
or  (to  speak  more  properly  according  to  the  theory) 
if  they  have  never  lost  any  by  rebellion,  —  it  follows 


62  RECONSTRUCTION. 

that  they  may  resort  to  this  process,  or  the  threat  of  it 
(which  in  many  cases  would  be  hardly  less  disastrous 
than  the  reality  in  a  national  point  of  view),  whenever 
they  might  think  it  expedient  to  do  so,  for  the  pur- 
pose of  obtaining  some  desired  political  end  or  ascend- 
ency, or  of  compelling  the  adoption  of  some  especial 
local  or  national  policy,  with  the  certainty,  that,  while 
enjoying  the  chance  of  success,  they  could  lose  nothing 
if  defeated,  and  with  the  possibility  that  even  defeat 
might  prove  a  gain,  as  in  the  present  instance,  where, 
upon  their  theory,  they  would  be  entitled  to  re-assume 
their  former  political  rights,  but  with  a  vast  increase 
of  relative  power  in  the  Government.  And  such  rebel- 
lion might  be  endlessly  repeated  with  the  like  impu- 
nity, with  the  chances  of  gaining  the  desired  end  if 
successful,  and  the  certainty  of  sustaining  no  loss  of 
political  power  if  defeated.  The  national  Govern- 
ment, if  of  such  a  nature,  would  be  little  worth  the 
blood  and  treasure  it  originally  costs  for  its  establish- 
ment, or  a  tithe  of  those  recently  expended  in  its 
preservation:  it  would  be  neither  worth  dying  for 
nor  living  under. 

But  there  is  another  and  broader  view  to  be  taken 
of  this  subject,  in  the  light  of  the  great  principles 
upon  which  the  Constitution  was  founded,  and  the 
great  purposes  for  which  it  was  created,  extending  far 
beyond  any  merely  literal  or  technical  rules  of  construc- 
tion as  applied  to  written  contracts  or  instruments  in 
the  ordinary  business  of  life. 


POLITICAL    RIGHTS    AND    PRIVILEGES.  63 

A  constitution  of  national  government  demands 
more  than  mere  obedience  to  rules  of  law  founded 
upon  domestic  expediency,  which  renders  their  appli- 
cation to  such  instruments  imperative  and  conclusive, 
often  without  much,  if  any,  regard  to  the  fundamental 
question  of  intention,  or  of  right  or  wrong  between 
the  parties,  or  the  purposes  for  which  they  were  made  ; 
and  with  none,  if  a  technical  rule  can  be  found  de- 
cisive of  the  question.  Such  rules  are  of  inevitable 
necessity  in  the  multifarious  relations  and  commerce 
of  individual  life,  and,  in  the  long-run,  subserve  the 
cause  of  justice. 

But  a  contract  creating  a  nation,  and  designed  to 
secure  and  perpetuate  the  internal  and  external  peace 
and  welfare,  and  to  preserve  the  life  of  a  nation,  calls 
for  very  different  rules  of  construction.  The  founda- 
tion principles  of  self-preservation  and  of  essential 
security  for  the  great  objects  of  the  compact,  must 
have  controlling  influence  over  all  other  principles,  if 
in  conflict  with  them,  when  applied  to  any  issue  in 
which  they  are  involved. 

This  principle  of  self  preservation  is  fully  recog- 
nized as  one  of  established  law  in  all  civilized  com- 
munities. A  man,  to  save  his  own  life,  may  destroy 
the  life  of  another,  although  innocent  of  any  wrong  to 
him;  as  in  the  familiar  illustration  of  two  men  upon  a 
plank  at  sea  sufficient  for  the  safety  of  one,  but  not  for 
both.  Either  may  justifiably  repel  the  other  from  it, 
if  the  instinct  or  duty  of  self-preservation  be  not  over- 


64  RECONSTRUCTION. 

ruled  by  higher  motives.  And  it  applies  with  infinite- 
ly more  force,  and  with  no  possible  qualification, 
where  a  national  government  is  called  upon  to  vindi- 
cate its  existence,  the  destruction  of  which  must  involve 
incalculable  losses  of  life  and  of  every  thing  that 
makes  life  worth  having. 

Now,  the  Constitution  of  the  United  States  was  a 
compact  entered  into  by  the  inhabitants  of  the  United 
States  for  the  declared  purpose  of  erecting  and  main- 
taining "  a  firm  national  government,"  under  which 
they  were  to  be  united  as  one  people,  owing  to  it 
individual  allegiance  as  citizens  of  one  nation,  and 
which  was  designed  to  possess  all  the  powers  of  inter- 
nal and  external  sovereignty  requisite  for  securing  to 
them  internal  and  external  peace,  security,  and  pros- 
perity ;  and  any  construction  of  it,  therefore,  which 
renders  it  manifestly  inoperative  to  accomplish  these 
fundamental  objects,  or  incapable  of  resisting  inter- 
nal or  external  assaults  upon  its  life,  cannot  be 
accounted  the  true  or  just  construction,  however 
plausibly  its  vindication  may  be  attempted  by  literal 
interpretations  of  particular  provisions,  or  specious 
arguments  founded  on  the  omission  of  others,  or  any 
technical  rules  of  construction,  ordinarily  applied  to 
written  contracts  in  private  life. 

The  nation,  as  history  abundantly  shows,  existed  as 
a  nation  before  the  Constitution  was  formed.  The 
nation  created  the  Constitution,  not  the  Constitution 
the  nation.  It  constructed  that  national  compact  for 


POLITICAL    RIGHTS    AND    PRIVILEGES.  65 

the  more  perfect  definition  and  distribution  of  the 
various  rights  and  powers  which  its  citizens  possessed, 
or  were  intended  to  possess,  in  their  individual  capa- 
cities and  in  their  corporate  capacities  as  States ;  and 
to  establish  a  form  of  government  that  should  be 
competent  to  protect  them  in  the  enjoyment  of  those 
rights  and  the  exercise  of  those  powers,  and  to  secure 
to  them  the  blessings  of  "a  firm  national  government" 
able  to  protect  them  at  home  and  abroad,  and  to  pre- 
serve their  national  unity  from  destruction  by  foes 
within  or  foes  without.  And  to  give  an  instrument 
designed  for  these  purposes  a  meaning  which  renders 
it  not  only  powerless  to  accomplish  them,  but  fur- 
nishes to  enemies  within  the  direct  means  of  under- 
mining and  destroying  the  authority  of  the  Government 
which  it  was  designed  to  create  and  preserve,  or  to 
construe  it  as  susceptible  of  any  such  use  or  abuse, 
or  as  wanting  in  any  essential  power  of  self-protec- 
tion, is  to  sacrifice  the  substance  to  the  form,  and  per- 
vert a  compact  intended  for  the  preservation  of  the 
nation's  life  into  one  for  its  destruction. 

The  Government,  formed  by  the  Constitution,  rep- 
resents the  nation  in  every  thing  pertaining  to  it  as  a 
nation.  Its  life  is  the  life  of  the  nation.  And  it  not 
only  has  the  right,  but  is,  on  every  principle  of  duty, 
bound,  to  protect  that  life  at  all  costs  and  all  hazards  ; 
and  for  that  end  to  exercise  other  powers  than  those 
expressly  given  by  the  Constitution,  if  manifestly 
necessary  for  that  end,  upon  the  obvious  principle 


66  RECONSTRUCTION. 

that  the  possession  of  such  ultimate  power   of  self- 
preservation  was  necessarily  implied  in  its  creation. 

In  the  language  of  the  Report  of  the  majority  of 
the  Committee  on  Reconstruction,  which  every  one 
desiring  to  understand  the  subject  should  know  by 
heart,  — 

"  It  is  more  than  idle,  it  is  a  mockery,  to  contend 
that  a  people  who  have  thrown  off  their  allegiance, 
destroyed  the  local  government  which  bound  their 
States  to  the  Union  as  members  thereof,  defied  its 
authority,  refused  to  execute  its  laws,  and  abrogated 
every  provision  which  gave  them  political  rights  within 
the  Union,  shall  retain,  through  all,  the  perfect  and 
entire  right  to  resume  at  their  own  will  and  pleas- 
ure all  their  privileges  within  the  Union,  and  espe- 
cially to  participate  in  its  Government,  and  to  control 
the  conduct  of  its  officers.  To  admit  such  a  princi- 
ple for  one  moment  would  be  to  declare  that  treason 
is  always  master,  and  loyalty  a  blunder.  Such  a  prin- 
ciple is  void  by  its  very  nature  and  essence,  because 
inconsistent  with  the  theory  of  government,  and  fatal 
to  its  own  existence." 

Upon  every  principle,  therefore,  of  public  law  ap- 
plicable to  a  condition  of  peace  or  war;  upon  any 
reasonable  construction  of  the  Constitution  in  refer- 
ence to  the  relations  of  the  inhabitants  of  the  several 
States,  and  of  those  States  to  the  national  Govern- 
ment which  it  created  and  defined ;  and  upon  the  fun- 
damental principles  of  interpertation  applicable  to 


POLITICAL    RIGHTS    AND    PRIVILEGES.  67 

civil  or  national  compacts,  —  it  is  believed  that  no  rea- 
sonable doubt  should  exist  that  the  inhabitants  of  the 
States  recently  in  rebelliqn,  by  that  act  forfeited, 
abandoned,  or  lost  their  political  rights  or  representa- 
tion in  Congress,  and  at  the  close  of  it,  by  their  en- 
forced surrender,  were,  in  the  language  of  that  report, 
"  disorganized  communities,  without  civil  government, 
and  without  constitutions,  or  other  forms  by  virtue 
of  which  political  relations  could  legally  exist  be- 
tween them  and  the  Federal  Government."  The 
vast  majority  of  them  were  criminals  who  had  vio- 
lated their  allegiance,  forfeited  all  rights  civil  or  po- 
litical, including  those  of  liberty  and  life  itself,  holding 
them  only  at  the  mercy  of  the  Govenrment  which 
they  had  thus  outraged  and  defied,  but  to  whose  power 
they  had  been  compelled  unwillingly  to  submit. 

And  consequently  that  they  could  be  re-instated  in 
their  political  rights  only  by  the  assent  of  the  Gov- 
ernment which  represented  the  nation,  and  is  fully 
empowered  to  do  all  things  needful  for  the  preserva- 
tion of  the  Constitution  and  the  Union,  and  the  res- 
toration of  the  people  to  unity  and  the  enjoyment  of 
political  privileges  under  them. 


PART     SECOND. 


CHAPTER  I. 

KEPLY  TO  THEORIES  AND  ARGUMENTS  ADDUCED  IN 
SUPPORT  OF  THE  PRESIDENT'S  POLICY.  — ALLEGED 
DESTRUCTION  OF  STATES  BY  IMPOSING  CONDITIONS 
OF  RESTORATION. 

IT  having  been  attempted,  in  the  previous  article 
upon  this  subject,  to  maintain  affirmatively  the  right 
of  Congress  to  impose  upon  the  people  of  the  rebel 
States  terms  or  conditions  of  restoration  to  their 
political  power  and  privileges  as  States  in  the  Union 
under  the  Constitution,  a  just  treatment  of  the  sub- 
ject demands  consideration  also  of  the  position 
taken,  and  arguments  adduced,  in  defence  of  the 
opposite  theory,  usually  designated  as  the  President's 
policy. 

These  are  to  be  found  in  the  Report  of  the  minor- 
ity of  the  Reconstruction  Committee,  the  Address  of 
the  Philadelphia  Convention  of  August,  and  the 
recently  published  letter  of  a  gentleman,  of  national 
celebrity  as  a  lawyer,  whose  acknowledged  claims  to 


70  RECONSTRUCTION. 

general  confidence  and  respect  give  very  great  weight 
to  his  opinions  upon  a  subject  like  the  present,  and 
invest  them  with  much  of  the  force  of  judicial 
authority. 

The  principal  positions  and  arguments  contained 
in  the  Keport  and  Address  referred  to,  it  is  believed, 
have  been  substantially  met  and  answered  ^by  those 
taken  in  the  preceding  article,  maintaining  the  right 
of  Congress  to  impose  such  terms  and  conditions,  — 
the  antagonism  between  them  being  so  direct  and 
obvious  as  to  render  those  on  either  side  subversive 
of  those  on  the  other,  according  to  the  convictions 
produced  in  the  mind  of  the  reader ;  although  some 
of  them  will  receive  further  consideration  below. 
The  letter,  however,  referred  to  as  containing  an  able 
epitome  or  summary  of  the  whole  matter,  with  some 
new  and  original  views,  —  and  as  having  great  and 
wide  influence  in  this  vicinity,  if  not  far  beyond  it,  — 
seems  to  demand  a  more  careful  and  direct  answer. 

There  would  be  several  reasons  which  might  pre- 
vent the  writer  of  this  article  from  entering  upon  the 
task,  if  such  answer  were  to  be  taken  alone,  as  a 
reply  merely  to  that  letter,  and  thus  to  place  him  in 
seeming  voluntary  antagonism  to  a  personal  friend. 
But  personal  reasons  can  no  longer  control  when 
such  reply  becomes  an  unavoidable  duty,  as  a  neces- 
sary portion  of  a  humble  effort  to  defend  or  uphold 
a  principle  of  government  which  he  deems  essential 
to  the  salvation  of  his  country  from  despotism  or 


THE  PRESIDENT'S  POLICY.  71 

anarchy,  to  the  brink  of  which  he  sadly  but  pro- 
foundly believes  her  to  be  now  brought  by  the  course 
pursued  by  the  national  Executive. 

The  object  of  the  letter  is  to  sustain  the  President 
in  the  theory  he  has  adopted,  that  the  inhabitants  of 
the  States  recently  in  rebellion  (and  which  for  brevity 
will  be  denominated  "  the  rebel  States  ")  are  lawfully 
entitled  to  the  immediate  restoration  of  their  former 
political  rights  and  powers  in  the  administration  of 
the  national  Government,  upon  the  determination  or 
fiat  of  the  executive  head  of  the  Government  that 
the  rebellion  has  ceased,  and  that  the  authority 
of  the  Constitution  and  the  laws  of  the  United  States 
have  bean  re-established  among  them ;  and  to  over- 
throw the  contrary  doctrine  maintained  by  Congress, 
that  the  Government,  in  its  legislative  capacity,  alone 
has  the  right  and  power  of  determining  when  such 
restoration  shall  take  place,  and  of  prescribing  such 
terms  and  conditions  of  it  as  may  be  deemed  neces- 
sary for  the  protection  and  future  peace  and  security 
of  the  country. 

Starting  with  seemingly  very  simple  postulates  or 
propositions,  —  so  simple,  indeed,  as  to  have  the 
appearance  of  mere  truisms,  but  which,  it  is  believed, 
have  no  substantial  application  to  the  case  in 
hand,  —  the  letter  proceeds  to  draw  from  them  the 
desired  conclusions ;  and,  having  accomplished  this  by 
way  of  general  argument,  it  finally  startles  us  with  a 
novel  and  specious  construction  of  the  Constitution, 


72  RECONSTRUCTION. 

investing  the  President  with  the  omnipotent  authority 
he  claims,  —  a  construction  believed  to  be  entirely 
original,  and  which,  if  maintainable,  entitles  the 
author  to  the  profound  gratitude  of  that  functionary, 
and  of  all  worshippers  of  the  "  one-man  power."  So 
that,  after  the  perusal  of  the  letter  in  the  usual  man- 
ner in  which  papers  of  this  sort  are  read,  one  might 
naturally  lay  it  down  in  a  sort  of  dreamy  conviction 
that  the  President's  policy  is  vindicated  by  the 
simplest  and  clearest  of  demonstrations,  "  which  he 
who  runs  may  read." 

It  is  proposed,  however,  more  carefully  to  examine 
the  premises,  and  the  conclusions  justly  deducible 
from  them,  if  they  can  be  applied  to  the  existing 
facts.  And,  upon  such  examination,  it  is  believed 
that  the  author  of  the  letter,  and  Congress,  will  be 
found  to  be  much  nearer  to  each  other  in  ultimate 
opinion,  as  founded  upon  general  principles,  than  he 
seems  to  imagine ;  and  that  the  great  difference 
between  them  will  rest  mainly  on  the  novel  construc- 
tion of  the  Constitution  alluded  to,  which  will  also  be 
examined,  and  with  great  confidence  that  it  has  no 
solid  foundation. 

Before  proceeding,  however,  to  these  matters,  it 
may  be  well  here  to  record  two  most  essential  princi- 
ples conceded  by  the  author,  lying  at  the  founda- 
tion of  the  position  taken  by  Congress,  and  which,  in 
a  justly  comprehensive  application  of  them,  it  is 
thought  go  very  far  (if  not  entirely)  to  overthrow 


THE  PRESIDENT'S  POLICY.  73 

the  argument  he  has   attempted  to  raise  upon  the 
postulates  referred  to. 

The  first  is  that  of  the  unquestionable  authority 
and  right  of  the  Government  to  subdue  the  rebellion 
by  force  of  arms,  laid  down  in  these  words :  — 

"  The  Government  of  the  United  States  may  and  must,  iu  the 
discharge  of  its  constitutional  duty,  subdue  by  arms  any  number  of 
its  rebellious  citizens  into  quiet  submission  to  its  lawful  authority. 
And  if  the  officers  of  a  State,  having  the  actual  control  of  its 
Government,  have  disobeyed  the  requirements  to  swear  to  support 
the  Constitution,  and  have  abused  the  powers  of  the  State,  by  mak- 
ing war  on  the  United  States,  this  presents  the  case  of  an  usurping 
and  unlawful  Government  of  a  State,  which  the  United  States  may 
lawfully  destroy  by  force  ;  for,  undoubtedly,  the  provision  of  the 
Constitution,  that  the  United  States  shall  guarantee  to  every  State 
in  this  Union  a  republican  form  of  government,  must  mean  a 
republican  form  in  harmony  with  the  Constitution,  and  which  is  so 
organized  as  to  be  in  the  Union."  1 

The  second,  and  of  no  less  importance,  is  that  the 
Government  of  the  United  States  alone  has  the 
power  to  decide  when  the  time  has  come  for  the  res- 
toration of  the  inhabitants  of  the  rebel  States  to  their 
political  rights  and  powers  as  States  in  the  Union. 
This  principle  is  thus  laid  down :  — 

"  And  if  the  preservation  of  the  States  within  the  Union  was 
one  of  the  objects  of  the  war,  and  they  can  be  preserved  only 
by  having  republican  governments  organized  in  harmony  with  the 
Constitution,  and  such  government  can  be  organized  only  by  the 
people  of  those  States,  then,  manifestly,  it  is  not  only  the  right,  but 
the  constitutional  duty,  of  the  people  of  those  States  to  organize 

1  All  italicizing  is  by  the  writer  of  this  article,  unless  it  be  otherwise 
stated. 

10 


74  RECONSTRUCTION. 

such  governments,  and  the  Government  of  the  United  States  can 
have  no  rightful  authority  to  prohibit  their  organization.  But  this 
right  and  duty  of  the  people  of  the  several  States  can  only  begin 
when  war  has  ceased,  and  the  authority  of  the  Constitution  and  the 
laws  of  the  United  States  has  been  restored  and  established;  and, 
from  the  nature  of  the  case,  the  Government  of  the  United  States 
must  determine  when  that  time  has  come" 

Now,  these  two  propositions  embrace  substantially 
all  that  is  claimed  by  Congress  and  its  supporters ; 
the  question  "when  the  war  has  ceased,  and  the  au- 
thority of  the  Constitution"  and  the  laws  of  the  United 
States  has  been  restored  and  established,"  —  being,  as 
is  at  once  perceived,  of  very  broad  scope,  —  compre- 
hending other  most  material  considerations  besides 
those  of  the  mere  laying-down  of  arms  and  formal 
submission  to  that  authority. 

The  war  cannot,  with  any  pretence  of  reason,  be 
considered  to  have  ceased,  nor  the  authority  of  the 
Constitution  and  the  laws  to  have  been  restored  and 
established,  if  the  surrender  and  professed  submission 
were  formal  merely,  or  intended  to  endure  only  so 
long  as  their  enforcement  could  not  be  successfully 
opposed ;  nor  if  future  resistance  were  designed  of 
any  kind ;  nor  so  long  as  the  rights  and  privileges 
of  all  citizens  of  the  United  States  under  the  Consti- 
tution and  the  laws  could  not  be  fully  vindicated  and 
secured  by  the  impartial  and  faithful  administration 
of  justice  in  the  courts  of  those  States  and  of  the 
United  States.  And,  if  it  is  lawful  and  just  to  with- 
hold from  these  States  the  restoration  of  political 


THE  PRESIDENT'S  POLICY.  75 

rights  and  power  in  the  administration  of  the  national 
Government  until  these  ends  shall  have  been  accom- 
plished (as  is  thus  conceded),  it  is  not  perceived  why 
it  may  not  be  equally  lawful  and  just  to  propose  and 
require  of  them  the  fulfilment  of  reasonable  condi- 
tions, by  which  such  restoration  may  safely  be  made 
immediate.  If  the  people  of  those  States  prefer  the 
delay  to  accepting  of  the  conditions,  it  is  their 
own  choice,  and  they  can  have  no  just  cause  of 
complaint. 

From  these  two  principles  or  propositions  above 
cited,  and  the  further  one  stated  in  the  letter,  that  the 
only  rightful  objects  of  the  war  — 

"  are  not  the  destruction  of  one  or  more  States,  but  their  preserva- 
tion ;  not  the  destruction  of  the  Government  in  a  State,  but  the 
restoration  of  its  government  to  a  republican  form  of  government  in 
harmony  with  the  Constitution" — 

the  further  conclusion  is  logically  inevitable,  that 
during  the  rebellion,  and  until  such  re -organization, 
the  inhabitants  of  those  States  did  not  compose  States 
in  the  Union  under  the  Constitution,  and  were  not 
entitled  to  any  political  power  and  privileges  as  such  ; 
although  such  inhabitants  continued  to  be  within  the 
Union  as  citizens  of  the  United  States,  and  subject  to 
the  authority  of  the  national  Government.  And  upon 
these  three  concessions  or  postulates,  —  namely,  that 
the  Government  of  these  United  States  might  rightfully 
subdue  the  people  of  the  States  in  rebellion  by  force 
of  arms ;  that  such  people  during  the  rebellion,  and 


76  RECONSTRUCTION. 

until  the  authority  of  the  Constitution  and  the  laws 
was  restored  and  established,  did  not  compose  States 
under  the  Constitution,  and  had  no  right  nor  power  to 
organize  themselves  into  such  States ;  and  that  the 
Government  of  the  United  States  is  the  rightful 
judge  of  the  time  when  such  authority  has  been 
restored  and  established,  and  such  re-organization 
may  take  place,  —  it  is  believed  that  the  claims  of 
Congress  might  safely  be  rested,  as  substantially 
controlling  all  the  other  positions  taken  in  the  let- 
ter, saving  that  of  the  new  construction  above  al- 
luded to. 

But  the  specious  logic  of  the  letter  requires,  per- 
haps, a  more  critical  examination  of  the  premises 
and  mode  of  argument  adopted  in  defence  of  the 
President's  policy,  and  in  opposition  to  the  claims  of 
Congress. 

Of  the  premises  or  postulates,  the  first  in  order  is 
in  these  words: — 

"The  nature  of  our  Government  does  not  permit  the  United 
States  to  destroy  a  State,  or  acquire  its  territory  by  conquest." 

The  second  is  as  follows  :  — 

"  Neither  does  it  permit  the  people  of  a  State  to  destroy  the 
State,  or  lawfully  affect  in  any  way  any  one  of  its  relations  to  the 
United  States." 

And  both  are  said  to  be  equally  inconsistent  with 
the  Constitution.  In  another  place,  the  first  premise 
is  stated  thus :  — 

"  But  neither  the  power  and  duty  of  the   Government  of  the 


THE  PRESIDENT'S  POLICY.  77 

United  States  to  subdue  by  arms  rebellious  people  in  the  territorial 
limits  of  one  or  more  States,  nor  its  power  and  duty  to  destroy  a 
usurping  Government  de  facto,  can  possibly  authorize  the  United 
States  to  destroy  one  of  the  States  of  the  Union,  or,  what  must 
amount  to  the  same  thing,  to  acquire  that  absolute  right  over  its 
people  and  its  territory  which  results  from  conquest  in  a  foreign 
war" 

Now,  these  premises,  taken  in  their  literal  and 
seemingly  natural  meaning,  are  simple  and  undenia- 
ble, excepting  the  assertion  that  to  exercise  the 
rights  of  conquest  over  the  inhabitants  of  a  rebellious 
State,  subdued  by  force  of  arms  of  the  Government 
of  the  United  States,  is  the  same  thing  as  the  de- 
struction of  the  State  by  that  Government,  which  will 
presently  be  considered.  No  one  ever  pretended  that 
the  Government  of  the  United  States,  acting  within 
its  constitutional  limits,  could  voluntarily  destroy  a 
State,  or  could  voluntarily  assent  to  the  withdrawal  of 
a  State  from  the  Union,  or  to  the  alteration  of  any 
of  her  constitutional  relations  to  it.  And,  if  these 
premises  are  to  be  thus  understood,  it  is  obvious  that 
they  have  no  relevancy  to  the  case  under  considera- 
tion. But  it  is  impossible  to  believe  this  to  be  their 
intended  signification.  To  give  to  them  any  reason- 
able interpretation,  as  applicable  to  any  issue  before 
the  country,  they  must  be  construed  as  implying  and 
intended  to  signify,  that  any  terms  imposed  upon  the 
people  of  the  rebel  States  as  conditions  of  their  res- 
toration to  the  privileges  of  States  in  the  Union,  be- 
yond those  of  present  submission  to  the  authority  of 


78  RECONSTRUCTION. 

the  Constitution  and  the  laws,  is  virtually  the  destruc- 
tion of  those  States,  or  can  be  rightfully  enforced 
only  upon  the  hypothesis  that  the  Government  of  the 
United  States  has  accomplished  that  destruction  by 
becoming  their  conquerors  in  war. 

This  mode  of  reasoning,  usually  founded  by  its  au- 
thors on  representations  or  implications  that  the  Gov- 
ernment was  the  aggressor  which  inaugurated  the 
war.  and  was  pursuing  it  for  the  conquest  of  the  rebel 
States  and  their  subjugation  to  its  authority,  —  and 
which  gives  a  corresponding  bias  to  all  their  argu- 
ments and  hypotheses,  —  however  unconsciously 
adopted,  is  nevertheless  believed  to  be  founded  upon 
an  entire  misconception  or  erroneous  supposition  of 
the  facts  as  really  existing,  not  to  say  on  one  the 
entire  reverse  of  the  truth. 

No  one  can  honestly  deny,  that  the  war  was  origi- 
nally inaugurated,  declared,  and  carried  on  by  the 
people  of  the  rebel  States  in  pursuance  of  a  long- 
cherished  design  to  dismember  the  Government  of  the 
United  States,  to  destroy  the  Union,  and  to  erect  a 
huge  Southern  slave  empire  on  a  portion  of  its  ruins; 
and  that  the  Government  of  the  United  States,  from 
the  beginning  to  the  end  of  it,  was  acting  purely  and 
solely  on  the  defensive,  to  save  itself  and  the  Union 
from  destruction,  according  to  the  duty  imposed  upon 
it  by  the  Constitution ;  and  that  so  far  from  its  hav- 
ing been  instrumental  in  the  destruction  of  those 
States,  or  of  any  of  their  relations  to  the  Union,  or 


THE  PRESIDENT'S  POLICY.  79 

seeking  any  such  destruction,  its  sole  object  has  been 
to  save  them  from  it. 

It  is  true,  that  their  relations  to  the  Union,  as 
States  under  the  Constitution,  have  been  destroyed. 
But  that  destruction  was  the  work  of  their  own  hands, 
not  that  of  the  national  Government.  It  was  they 
who,  repudiating  the  Constitution  and  authority  of 
the  United  States,  abolishing  their  former  govern- 
ments established  under  them,  sundering  all  the 
relations  which  could  constitute  them  States  in  the 
Union,  and  establishing  a  foreign  and  hostile  govern- 
ment, waged  open  war  upon  the  Government  of  the 
United  States  to  accomplish  its  destruction.  And  is 
it  not,  in  the  face  of  these  facts,  a  marvellous  per- 
version to  talk  of  them  as  being  destroyed,  or  of 
their  destruction  as  being  sought  by  that  government? 
Or  to  say  that  any  thing  which  the  Government  has 
done,  is  doing,  or  can  do,  renders  it  in  any  degree 
accountable  for  their  destruction  ?  Is  it  not  undenia- 
ble, that  they  themselves,  alone,  have  been  guilty  of 
the  most  criminal  self-destruction  as  States  under  the 
Constitution  ?  that  they  have  died  by  their  own  hands, 
and  not  by  the  hands  of  the  United  States  1  and  that 
all  which  is  left  for  the  United  States  to  do  is  to  aid 
in  their  resurrection  from  the  graves  dug  by  them- 
selves 1 

It  is  in  the  light  of  these  facts  that  we  are  to  judge 
of  the  justness  of  the  position  above  referred  to ; 
namely,  that  for  the  Government  of  the  United  States 


80  RECONSTRUCTION. 

to  acquire  that  absolute  right  over  the  people  of  a 
State  and  its  territory  which  results  from  conquests 
in  a  foreign  war  is  the  same  thing  as  to  destroy  the 
State.  This  word  "  State,"  as  used  in  this  connection, 
in  order  to  have  any  sensible  meaning,  must  be  con- 
strued to  mean  a  State  under  the  Constitution,  and 
preserving  its  constitutional  relations  to  the  Union. 
And  how,  after  the  people  of  it  have  themselves 
destroyed  it,  and  the  Government  has  conquered  them 
in  a  long  and  bloody  war,  the  exercise  of  any  rights 
of  conquest  in  order  to  compel  them  to  return  to 
their  allegiance,  or  to  make  it  secure  from  future 
violation,  is  the  same  thing  as  destroying  it,  is  not 
clear  to  every  comprehension.  If  it  was  already 
destroyed,  as  such  a  State,  by  its  own  people,  the 
rights  of  conquest  could  add  nothing  to  such  destruc- 
tion, however  exercised ;  and  surely  not,  if  exercised 
solely  for  its  restoration. 

These  premises  therefore,  it  is  believed,  may  be 
laid  aside  as  being  either  irrelevant  to  any  question 
in  issue,  or,  if  susceptible  of  any  seeming  relevancy, 
being  so  only  upon  the  assumption  or  supposition  of 
facts  having  no  existence. 


POWERS    OF    CONGRESS.  81 


CHAPTER  II. 

ASSERTED  CONSTITUTIONAL  LIMITS  TO  POWERS  OF  CON- 
GRESS.—THEORY  THAT  THE  PEOPLE  OF  THE  LATE 
REBEL  STATES  ARE  ENTITLED  TO  COMPLETE  IMME- 
DIATE RESTORATION. 

BUT  the  position  doubtless  mainly  relied  upon  in 
denial  of  the  right  of  Congress  to  enforce  any  terms 
upon  the  inhabitants  of  the  rebel  States  as  condi- 
tions of  restoration,  is,  that  the  right  of  the  Govern- 
ment of  the  United  States  to  subdue  the  rebellion 
was  a  constitutional  right,  which  can  be  lawfully  ex- 
ercised only  "  within  the  limits  of  the  powers  con- 
ferred by  the  Constitution;"  and  that  this  right  is 
thus  confined  to  the  subjugation  of  the  rebellion,  and 
the  restoration  and  establishment  of  the  authority  of 
the  Constitution  and  the  laws  of  the  United  States 
in  the  rebellious  territories ;  and  that,  when  such 
restoration  and  establishment  have  taken  place,  —  by 
whatever  means,  —  the  inhabitants  become  ipso  facto, 
as  matter  of  right,  entitled  to  re-organization  as  States 
under  the  Constitution,  and  to  the  immediate  enjoy- 
ment of  their  former  political  powers  and  privileges 
conferred  by  it ;  and  hence,  that  no  terms  of  indem- 
nity for  the  past  or  security  for  the  future,  however 

11 


82  RECONSTRUCTION. 

mild  or  generous,  or  however  reasonable,  can  be 
exacted. 

Now,  admitting  the  theory  to  be  true  that  the  right 
of  the  Government  to  subdue  the  rebellion  was  a 
strictly  constitutional  right,  and  to  be  exercised  solely 
for  the  purpose  of  restoring  and  re-establishing  the 
authority  of  the  Constitution  and  the  laws  in  the  rebel 
States,  and  of  bringing  them  into  the  fold  of  the 
Union,  —  it  is  not  perceived  where  any  limits  are  pre- 
scribed by  the  Constitution,  or  by  what  course  of 
reasoning  any  can  be  inferred  from  it,  which  prohibit 
the  Government,  after  the  rightful  subjugation  of  its 
rebellious  subjects  by  force  of  arms,  from  requiring 
of  them  indemnity  for  the  injuries  they  have  inflicted 
upon  the  nation,  so  far  as  such  indemnity  is  possible  ; 
or  from  prescribing  such  conditions  of  restoration  to 
their  former  political  powers  and  privileges  as  may 
be  necessary  to  prevent  the  future  perversion  of  them 
to  the  like  criminal  purposes ;  and  such  security  for 
the  personal  safety,  freedom,  and  immunities  of  all 
citizens  of  the  United  States  within  their  borders  as 
justice,  humanity,  and  the  pligHted  faith  of  the  Gov- 
ernment, make  necessary. 

If  the  Government  has  the  constitutional  right  to 
subdue  its  rebellious  subjects  by  war  for  the  purpose 
of  restoring  the  authority  of  the  Constitution  and 
the  laws  over  them,  it  follows  in  the  plainest  logical 
necessity  that  it  must  have  also  the  constitutional 
right  to  make  that  restoration  complete  and  perma- 


POWERS    OF    CONGRESS.  83 

nent;  for  otherwise  it  can  in  no  just  sense  be  ac- 
counted a  full  restoration.  And  as  the  Constitution 
neither  does  nor  could  prescribe  limits  to  the  exer- 
cise of  the  military  power  necessary  for  the  purposes 
of  such  subjugation  and  restoration,  so  neither  does 
it,  nor  could  it,  prescribe  limits  to  the  power  by  which 
they  shall  be  rendered  permanently  secure.  Both 
must  be  left  to  the  good  faith  and  sound  discretion  of 
the  Government,  applied  to  the  exigencies  as  they 
arise.  And  it  is  conceded  on  all  hands  that  it  alone 
must  be  the  judge  to  decide  when  such  restoration 
shall  be  accounted  as  accomplished. 

It  is  believed  that  the  case  on  this  point  might 
be  very  safely  rested  here,  as  showing  that  upon  the 
principles  affirmed  or  conceded  by  the  author  of  the 
letter,  carried  out  to  their  legitimate  issues,  the  Gov- 
ernment has  an  unquestionable  right  to  prescribe  such 
terms  as,  in  the  exercise  of  good  faith  and  a  sound 
discretion,  it  should  see  fit  to  impose  as  conditions  of 
the  restoration  of  the  people  of  the  rebel  States  to 
their  former  political  powers  and  privileges.  But  the 
theory  of  their  immediate  right  to  such  restoration 
without  any  conditions  or  limitations  whatever,  which 
he  asserts  and  attempts  to  maintain,  appears  to  be  so 
utterly  inconsistent  with  any  reasonable  appreciation 
of  the  facts  as  known  to  exist,  and  to  lead  to  conse- 
quences so  seemingly  subversive  of  all  future  peace 
and  security,  that  they  cannot  be  suffered  to  pass 
unnoticed.  He  states  this  theory  in  these  remarkable 
words :  — 


84  RECONSTRUCTION. 

"After  much  reflection,  and  with  no  such  partiality  for  execu- 
tive power  as  would  be  likely  lo  lead  one  astray,  I  have  formed 
the  opinion  that  the  Southern  States  are  now  as  rightfully,  and 
should  be  as  effectively,  in  the  Union  as  they  were  before  the  mad- 
ness of  their  people  attempted  to  carry  them  out  of  it ;  and  in  this 
opinion  I  believe  a  majority  of  the  people  of  the  United  States 
agree." 

It  is  presumed,  that,  by  this  time,  the  author  must 
be  convinced  that  a  very  great  majority  of  the  people 
of  the  Northern  States  entertain  a  totally  contrary 
opinion.  And  if,  from  the  votes  cast  in  the  late  elec- 
tions, those  of  interested  office-seekers  and  their 
friends,  of  sympathizers  in  the  rebellion  from  the 
start  to  this  hour,  of  hirelings  paid  for  their  ballots, 
of  those  actuated  by  an  unrelenting  hatred  of  the 
Republican  party  as  a  controlling  motive,  and  of 
the  hordes  of  ignorant  foreigners  who  constitute  the 
strength  of  the  Democratic  party  in  the  great  cities, 
were  to  be  stricken  out  of  the  count,  he  would,  it 
is  believed,  find  himself  in  a  minority,  in  point  of 
numbers,  indeed  most  miserable. 

But  how  does  this  theory  comport  with  the  facts  ? 
It  is  undeniable,  in  view  of  all  the  evidence  before  the 
the  world, —  in  the  report  of  the  Committee  upon 
Reconstruction ;  in  the  daily  reports  from  Southern 
newspapers ;  in  the  public  speeches  and  addresses 
of  the  leading  men  of  the  South,  both  occasional  and 
official ;  in  the  action  of  their  legislatures  and  so- 
called  courts  of  justice;  in  the  reports  of  the 
military  commanders  stationed  among  them,  and  of 


POWERS    OF    CONGRESS.  85 

the  officers  of  the  Freedmen's  Bureau;  in  the 
multitudinous  relations  of  murders  and  outrages  upon 
the  black  man;  and  in  accounts  of  the  insecurity 
of  life  in  many  parts  of  the  Southern  States,  to  any 
Union  man  out  of  the  scope  of  military  protection, 
with  which  the  daily  papers  and  private  letters  are 
filled,  —  in  the  view  of  all  this  evidence,  and  with  the 
ghastly  massacres  of  Memphis  and  New  Orleans 
yet  fresh  in  remembrance,  it  is  undeniable  that  a 
general  and  almost  universal  conviction  prevails  at 
this  moment,  among  the  inhabitants  of  the  rebel 
States,  that  their  cause  was  a  just  one ;  that  the 
undertaking,  on  the  part  of  the  Government  of  the 
United  States,  to  subdue  them  was  unrighteous  and 
cruel,  and  that  they  are  the  victims  of  oppression  by 
the  mere  fortunes  of  war ;  that  the  debt  incurred  by 
them  was  in  defence  of  their  sacred  rights,  and  ought 
to  be  conscientiously  paid ;  that  the  debt  contracted 
by  the  United  States  was  the  fruit  of  an  unjustifiable 
and  wicked  war  upon  them,  and  should  be  repudi- 
ated, or  at  least  that  no  portion  of  it  should  be 
assessed  upon  them ;  that  slavery,  which  they  were 
forced  to  abolish,  was  in  truth  a  divine  institution,  the 
best  possible  for  the  black  man  as  well  as  for  the 
white ;  that  the  security  and  happiness  of  both  races 
require  that  the  negro  should  be  held  in  perpetual 
subordination,  as  the  hewer  of  wood  and  drawer  of 
water ;  that  the  privilege  of  the  ballot,  of  serving  as 
a  juror,  or  of  holding  any  office  of  honor  or  emolu- 


86  RECONSTRUCTION. 

ment,  or  of  owning  or  hiring  land,  or  of  education, 
are  all  alike  inconsistent  with  the  dignity  and  safety 
of  the  white  man,  or  the  real  good  of  the  black  man ; 
and  that,  if  any  opportunity  should  hereafter  present 
itself  for  them  to  re-assert  their  right  of  secession, 
and  establish  a  Southern  empire,  it  would  be  perfectly 
righteous  for  them  to  do  so. 

Such  are  unquestionably  the  temper,  the  feelings, 
the  sentiments,  and  opinions  of  the  great  majority  of 
Southern  men  and  women  at  this  time,  and  of  nearly 
all  of  their  recognized  leaders.  If,  then,  the  author- 
ity of  the  Constitution  and  the  laws  of  the  United 
States  is,  or  appears  to  be,  so  far  established  among 
them,  that  its  courts  and  magistrates  of  law  and  other 
officers  are  permitted  to  re-assume  their  functions,  and 
no  open  or  organized  resistance  of  it  is  ventured 
upon,  they  nevertheless  all  stand  upon  the  ashes 
of  this  smothered  volcano,  whose  embers  are  still 
burning  with  intense  heat  beneath  them,  and  where 
existing  forms  of  law  and  government  are  notoriously 
inadequate  for  the  security  of  the  lives  and  liberty 
of  the  freedmen,  who  lie  exposed  to  the  merciless 
inflictions  of  State  legislation,  and  the  still  more  merci- 
less persecutions  of  vindictive  social  hatred,  from 
which  nothing  in  the  existing  Constitution  and  laws 
can  protect  them. 

This  seeming  restoration,  then,  of  the  authority 
of  the  Constitution  and  the  laws,  if,  indeed,  such 
seeming  can  be  said  to  exist,  is  but  an  outward  show ; 


POWERS    OF    CONGRESS.  87 

and,  while  the  heart  of  the  South  remains  unchanged, 
can  be  but  a  hollow  truce,  unless  some  fitting  safe- 
guard for  the  future  be  erected.  Nor  can  it  be 
justly  said  that  such  precautions  would  indicate 
unjust  and  unworthy  suspicions  of  the  good  faith  of 
the  inhabitants  of  the  Southern  States,  who  have 
professedly  returned  to  their  allegiance.  The  diffi- 
culty is  not  in  supposing  them  less  worthy  of  trust 
than  other  men,  or  than  the  people  of  the  North 
might  be  in  the  like  circumstances.  It  is  in  the 
nature  of  man,  that  he  cannot  long  and  patiently 
submit  in  silence  and  quiet  under  the  sense  of  such 
accumulated  wrong  and  injustice  as  the  people  of 
the  South  imagine  to  be  thus  heaped  upon  them. 
And,  if  the  smothered  fire  should  not  find  vent  in 
another  open  outbreak,  it  inevitably  must  in  the 
secret  windings  of  political  machinations  and  com- 
binations tending  to  the  same  end.  Some  security, 
therefore,  seems  indispensable  for  the  preservation  of 
any  future  peace  or  permament  safety  of  the  Union. 

But  why,  it  is  asked,  is  not  the  new  oath  of  alle- 
giance sufficient,  and  all  that  can  be  reasonably 
demanded  of  honorable  men  or  good  citizens?  The 
answer  is  obvious.  Nearly  all  the  leading  men  of 
the  South  had  taken  the  oath  of  allegiance  to  the 
United  States,  and  broke  it  unhesitatingly  to  take 
part  in  the  rebellion,  and  substitute  a  new  oath  of 
allegiance  to  another  and  hostile  government.  And 
they  did  this,  they  say,  conscientiously,  under  the 


88  RECONSTRUCTION. 

conviction  that  allegiance  was  primarily  due  to  their 
respective  States,  and  that  the  allegiance  due  to  the 
United  States  was  secondary  only.  And  in  this  view 
they  were  and  are  sustained  by  the  nearly  unanimous 
voice  of  their  people.  And,  they  still  earnestly  main- 
tain that  they  were  right  in  this  construction  of  their 
duties,  and  spurn  with  indignation  the  imputation  of 
any  treason  or  falsehood  against  the  Government  of 
the  United  States.  And,  this  being  so,  what  security 
can  there  be  that  this  new  oath  will  not  be  taken  or 
construed  with  the  like  mental  reservation?  or,  if  that 
might  not  be,  why  might  they  not  hereafter,  and  with 
truth,  assert  that  this  oath  was  not  voluntary,  but  one 
extorted  under  duress  and  the  force  of  arms,  and 
therefore  not  binding  upon  the  conscience  1 

In  view,  therefore,  of  the  facts,  and  of  the  general 
principles  to  be  applied  to  them,  it  seems  to  follow, 
as  of  logical  necessity,  that  (however  the  powers  of 
the  Government  of  the  United  States  might  be  sup- 
posed to  be  otherwise  limited  by  the  Constitution,  in 
the  carrying-on  of  the  war  and  in  prescribing  con- 
ditions of  peace  and  restoration)  whatever  terms  are 
demanded  by  the  exigency,  in  order  to  make  such 
peace  and  restoration  entire  and  permanent,  must  be 
within  the  scope  of  those  powers ;  and  that  some 
such  terms  or  conditions  are  imperatively  demanded 
in  the  present  case. 

Upon  what  reason  or  principle,  then,  is  this  doctrine 
denied,  and  an  attempt  made  to  show  that  the  Consti- 


POTTERS    OF    CONGRESS.  89 

tution  does  interpose  to  limit  those  powers  and  to 
prevent  the  imposition  of  any  such  terms  \ 

The  main  argument,  if  argument  it  may  be  called, 
seems  to  consist  in  the  formula  above  cited ;  namely, 
that  the  right  of  the  Government  to  subdue  the  re- 
bellion, being  a  constitutional  right,  could  be  exer- 
cised only  "  within  the  limits  of  the  powers  conferred 
by  the  Constitution ;  "  that  those  powers,  being  con- 
fined to  the  restoration  and  re-establishment  of  the 
authority  of  the  Constitution  and  the  laws  in  the  re- 
bellious States,  were  exhausted  when  such  restoration 
and  establishment  were  accomplished,  and  the  peo- 
ple of  those  States  therefore  become  entitled  to  im- 
.mediate  restoration  of  all  their  former  political 
powers  and  privileges  in  the  Union;  and  therefore 
that  an  attempt  to  impose  upon  them  any  terms  or 
conditions  of  such  restoration  is  an  usurpation,  hav- 
ing no  other  foundation  than  the  assumed  right  of 
the  conqueror  to  dictate  terms  of  peace,  and  which 
right,  it  is  alleged,  pertains  to  conquest  in  a  foreign 
war  only,  and  not  to  one  in  a  civil  war.  And  no 
little  dust  has  been  thrown  into  the  eyes  of  the 
public,  by  efforts  to  make  it  appear  that  Congress, 
in  undertaking  to  impose  any  terms  or  conditions 
of  restoration,  are  usurping,  and  assuming  to  act 
upon,  the  rights  and  powers  of  conquerors  in  a 
foreign  war. 

It  must  be  apparent  to  every  reader,  that  this  style 
of  reasoning  is  founded  upon  an  entire  begging  of 

12 


90  RECONSTRUCTION. 

the  whole  question :  first,  in  assuming  that  the  rebels, 
upon  such  submission,  became  immediately  and  un- 
conditionally entitled  to  enjoyment  of  their  former 
powers  and  privileges  in  the  Union, — when  the  main 
question  at  issue  is  whether  they  do  become  so  ;  and, 
secondly,  in  assuming  that  the  right  of  the  conqueror 
in  war  to  dictate  terms  of  peace  is  confined  ex- 
clusively to  foreign  war,  and  does  not  extend  to  civil 
war,  —  which  is  also  one  of  the  material  questions  to 
be  decided. 

In  reference  to  the  first  of  these  questions,  it  is  be- 
lieved that  no  further  argument  can  be  needed  to 
prove  that  the  right  of  the  Government  to  subdue  the 
rebellion,  and  restore  the  authority  of  the  Constitution 
and  the  laws  in  the  rebellious  States,  involves,  by  an 
inevitable  logical  necessity,  the  right  to  impose  upon 
the  people  of  those  States  such  terms  and  conditions 
as  shall  make  such  restoration  secure  and  permanent, 
or  to  hold  them  under  its  military  authority  until  it 
shall  have  become  so. 


EIGHT   OF    GOVERNMENT.  91 


CHAPTER  III. 

RIGHT    OF    GOVERNMENT    AS     CONQUEROR    TO     DICTATE 
TERMS   OF  PEACE. 

IN  discussing  the  right  of  the  Government  to  dic- 
tate terms  and  conditions  of  peace  as  the  victors  in 
the  struggle,  we  must  put  aside,  as  wholly  irrelevant, 
all  questions  concerning  the  right  of  the  Government 
of  the  United  States  to  hold  the  inhabitants  of  terri- 
tories, acquired  by  conquest  in  a  foreign  war,  perma- 
nently under  military  control,  or  under  territorial  or 
colonial  administration  only ;  or  of  its  obligation 
to  admit  them  into  the  Union  as  States  when  fitted  for 
such  admission.  Also,  any  question  of  its  right  or 
power,  as  the  conqueror,  to  hold  the  inhabitants  of 
the  rebel  States  in  permanent  military  or  other  con- 
trol as  territories  or  colonies ;  or  to  impose  upon 
them  any  terms  or  conditions  of  restoration  to  their 
former  political  rights  and  powers,  which  it  may  see 
fit  to  impose  in  the  exercise  of  its  arbitrary  will  only, 
without  due  regard  to  such  ultimate  restoration.  And 
with  them  may  go  the  nonsensical  clamor  about  mili- 
tary usurpation,  military  despotism,  despotic  will,  and 
irresponsible  power,  heaped  upon  Congress  for  main- 


92  RECONSTRUCTION. 

taining  its  right,  as  the  victor,  to  impose  conditions 
of  peace. 

It  is  conceded,  that  the  nature  of  the  Government 
of  the  United  States,  as  created  by  the  Constitution, 
does  limit  its  powers,  as  conquerors  of  the  rebel 
States,  to  the  effectual  subjugation  of  their  inhabitants 
to  its  authority,  for  the  purpose  of  the  restoration  of 
them  to  their  former  rights  and  privileges  as  States  in 
the  Union ;  and  would  not  allow  it  to  hold  them  in 
permanent  arbitrary  subjection,  as  conquered  territo- 
ries merely,  any  longer  than  may  be  needful  for  the 
accomplishment  of  such  restoration.  But  it  is  main- 
tained that  the  Government,  nevertheless,  has  full 
right  and  power,  as  the  conqueror  in  the  war,  to  pre- 
scribe the  terms  and  conditions  of  peace  upon  which 
such  restoration  shall  be  granted,  unlimited  and  un- 
shackled by  any  provisions  of  the  Constitution,  or  any 
other  restraints  than  those  of  obedience  to  humanity, 
justice,  sound  national  policy,  and  the  preservation  of 
the  Union ;  and  that  the  Constitution  does  not  ex- 
pressly, nor  by  implication,  interpose  to  shield  the 
inhabitants  of  those  States  from  the  imposition  of 
such  terms  and  conditions,  or  to  entitle  them  to  re- 
assume  their  participation  of  power  in  the  national 
councils,  free  from  all  restraint  upon  its  perversion 
for  accomplishing  hereafter  the  same  purposes  which 
they  sought  to  gain  in  the  field.  Any  other  principle 
obviously  deprives  the  Government,  whose  life  is  the 
life  of  the  nation,  of  the  power  of  self-preservation, 


RIGHT    OF    GOVERNMENT.  93 

and  makes  the  Constitution,  which  created  it,  the  ready 
means  for  its  destruction. 

The  truth  is  manifest,  that  the  exigency  of  a  civil 
war,  by  a  combination  of  States  against  the  General 
Government,  was  not  anticipated  by  the  framers  of 
the  Constitution,  and  is  nowhere  contemplated  in  its 
provisions;  and  consequently  that  the  terms  of  it 
have  nothing  to  do  with  the  case  in  hand,  further  than 
this  :  that  in  establishing  a  frame  of  government  upon 
the  broadest  principles  of  freedom  and  humanity,  and 
for  the  especial  purpose  of  establishing  and  perpetu- 
ating the  Union,  they  impose  upon  that  government 
corresponding  obligations  to  treat  rebellious  subjects 
with  all  the  mercy  and  magnanimity  which  the  nature 
of  their  crime  and  the  safety  of  the  republic  will 
allow;  and  the  further  sacred  duty  of  preserving 
the  Union  unimpaired,  by  restoring  the  rebel  States 
to  their  former  places  in  it,  as  soon  as  such  restora- 
tion can  be  safely  accomplished ;  but  leaving  the 
time  and  mode  of  discharging  these  duties  to  the 
exercise  of  its  judgment  and  discretion,  to  be  faith- 
fully exercised  for  the  good  of  the  whole  nation.  The 
common  sense  of  the  people  of  the  United  States, 
of  mankind,  and  of  history  will  repudiate  as  absurd 
any  hypothesis  that  the  Constitution  imposes  any 
other  limits  to  the  authority  of  the  national  Govern- 
ment in  such  an  exigency,  or  binds  any  such  fetters 
about  its  limbs  as  render  it  incapable  of  self-defence, 
or  of  saving  the  nation  for  whose  preservation  it  was 
created.  * 


94  RECONSTRUCTION. 

As  the  Constitution,  in  investing  the  Government 
with  the  power  to  enter  upon  foreign  war,  implicdly 
clothed  it  with  all  the  rights  incident  to  conquest, 
including  that  of  dictating  the  terms  of  peace,  and 
unlimited  by  any  other  restraints  than  those  imposed 
by  the  nature  of  the  Government  and  the  objects  of 
the  war ;  so,  in  investing  it  with  the  power  to  subdue 
rebellious  subjects  in  a  civil  war,  it  gives  the  like 
right  to  impose  the  terms  and  conditions  of  peace,  or, 
which  is  the  same  thing,  of  restoration  to  their 
former  rights  and  privileges,  unlimited  by  any  other 
than  the  like  restraints.  The  reason  is  the  same  in 
both  cases.  This  right  of  the  conqueror  is  not  found- 
ed upon  any  arbitrary  rule,  nor  is  it  any  merely 
gratuitous  prerogative  granted  to  the  strongest  as 
the  fruit  of  victory,  but  rests  upon  the  absolute 
and  unavoidable  necessity  of  the  case,  there  being 
no  common  arbiter  or  judge  who  can  decide  be- 
tween the  parties  upon  the  reasonableness  or  justice 
of  the  terms  upon  which  peace  should  be  made ;  and 
which  necessity  is  as  absolute  in  a  civil  war  as  in  a 
foreign  war. 

In  considering  the  applicability  of  the  rule  in  this 
instance,  it  must  be  conceded  that  if  there  ever  was 
a  case,  or  one  could  be  imagined,  in  which  a  civil 
war  could  or  should  vest  in  the  victorious  Government 
all  the  rights  of  the  conqueror  as  in  a  foreign  war, 
this  is  most  emphatically  that  case ;  for  whether  re- 
garded in  reference  to  the  acknowledged  absence  of 


RIGHT   OF    GOVERNMENT.  95 

any  justifying  cause  for  the  rebellion,  or  to  the  extent 
of  national  territory  held  for  four  years  in  exclusive 
and  hostile  array  against  the  national  forces,  or  to  the 
worse  than  barbaric  ill  faith  and  fiendish  cruelty  with 
which  the  war  on  their  part  was  waged,  or  to  the 
enormous  sacrifices  of  precious  life  and  countless 
treasure  which  it  cost,  the  enormity  of  the  crime 
against  civilization  and  humanity  has  no  parallel,  and 
no  punishment  could  exceed  that  due  to  the  guilty 
authors  of  it.  Justice  and  humanity,  as  well  as  na- 
tional policy,  would  alike  dictate,  that,  at  the  close 
of  the  struggle,  they  should  lie  at  the  feet  of  their  vic- 
tors. 

The  entire  identity  of  the  rights  and  powers  inci- 
dent to  victory  in  civil  Avar  with  those  of  victory  in 
foreign  war  is  broadly  and  clearly  laid  down  in  the 
elementary  writers  on  public  law  of  the  highest 
authority.  It  is  so  necessary  to  have  this  material 
element  in  the  argument  immediately  before  the 
reader,  that  no  other  apology  is  necessary  for  repeat- 
ing the  citation  from  Vattel  above  made  in  another 
connection.  He  states  the  principle  thus :  — 

"  A  civil  war  breaks  the  bands  of  society  and  government,  or  at 
least  suspends  their  force  and  effect.  It  produces  in  the  nation  two 
independent  parties,  who  consider  each  other  as  enemies,  and  ac- 
knowledge no  'common  judge.  These  two  parties,  therefore,  must 
necessarily  be  considered  as  constituting,  at  least  for  a  time,  two 
separate  bodies,  two  distinct  societies.  Having  no  common  superior 
to  judge  between  them,  they  stand  in  precisely  the  same  predica- 
ment as  two  nations  who  engage  in  a  contest,  and  have  recourse  to 
arms" 


96  RECONSTRUCTION. 

Wheaton  lays  down  the  law  thus :  — 

"  The  general  usage  of  nations  regards  such  a  war  (civil  war) 
as  entitling  both  the  contending  parties  to  all  the  rights  of  war  as 
against  each  other,  and  even  as  respects  neutral  nations."  (Whea- 
ton's  International  Law,  Dana's  ed.,  §  296.) 

Mr.  Dana  annexes  a  very  elaborate  note  upon  the 
subject  of  belligerent  rights  incident  to  civil  war, 
both  in  regard  to  the  parties  to  it  and  to  foreign  na- 
tions, but  suggests  no  distinction  between  the  rights 
of  victory  in  that  and  those  of  victory  in  a  foreign 
war.  And  it  is  believed  that  no  such  distinction  is 
anywhere  intimated  by  any  writer  upon  public  law. 
If  it  had  been,  it  could  not  have  escaped  this  learned 
and  thorough  master  of  the  subject.  It  seems  impos- 
sible to  believe,  that,  if  the  broad  difference  contended 
for  were  contemplated  by  them  as  having  legal  ex- 
istence, they  should  never  have  made  allusion  to  it  ; 
and  equally  incredible,  that,  if  founded  on  any  sound 
principle,  it  should  not  have  occurred  to  their  minds. 
So  far,  therefore,  as  their  opinions  may  be  inferred  both 
from  their  language  and  their  silence,  it  is  believed 
that  they  may  be  considered  as  rejecting  any  such  dis- 
tinction. 

And  the  reason  of  the  case  is  manifestly  against 
any.  The  fundamental  principles  of  the  right  of  the 
victor  to  prescribe  the  terms  of  peace  in  a  foreign 
war,  apply,  not  only  with  equal,  but  with  greater 
force,  in  a  civil  war.  That  of  the  necessity  of  the 
case,  namely,  because  there  can  be  no  common  arbi- 


RIGHT    OF    GOVERNMENT.  97 

ter  or  judge  between  them,  is  of  equal  validity  in 
both  cases.  And,  in  reference  to  qualifications  of  the 
arbiter,  who  but  the  victorious  Government  can  de- 
cide upon  the  nature  or  degree  of  the  crime  involved 
in  the  treason,  the  punishment  justly  due,  the 
amount  of  injuries  for  which  indemnity  may  justly 
be  demanded,  the  security  necessary  to  guard  against 
future  like  revolt,  or  for  the  protection  of  the 
lives,  liberties,  rights,  and  property  of  the  loyal  citi- 
zens of  the  Union  in  the  territories  of  the  rebel 
States,  and  the  other  questions  necessarily  involved 
in  any  adjustment  of  the  terms  of  peace  1 

It  is  absurd  to  pretend,  that,  upon  the  surrender  of 
the  rebel  forces  and  the  cessation  of  opposition  to  the 
authority  of  the  Constitution  and  the  laws,  the  Con- 
stitution becomes  the  arbiter ;  for  the  whole  question 
is  of  the  right  of  the  rebels  to  be  restored  to  any 
privileges  under  it,  or  of  the  terms  upon  which  such 
restoration  shall  be  made ;  and,  until  that  shall  have 
been  completed,  their  constitutional  rights  are  the 
subject  in  dispute,  not  the  arbiter  by  which  it  can  be 
decided. 

Again,  the  rule  applies  to  the  case  of  a  civil  war 
with  much  greater  reason,  from  the  consideration, 
that  in  such  .a  war,  where  the  legitimate  Government 
has  succeeded  in  subduing  an  unrighteous  rebellion, 
the  conquered  are  malefactors,  guilty  of  the  highest 
crime  known  in  civilized  society,  and  the  terms 
of  whose  pardon,  therefore,  upon  all  the  principles 

13 


98  RECONSTRUCTION. 

and  analogies  of  law,  rest  of  right  in  the  sense  of  just- 
ice and  humanity  of  the  Government  whose  authority 
they  have  spurned,  and  whose  laws  they  have  out- 
raged. 

What,  then,  are  the  reasons  urged  in  denial  of  this 
right  ?  So  far  as  they  can  be  gathered  from  this  let- 
ter, and  the  minority  Report,  and  other  publications, 
they  are  thus  related :  — 

"  When  the  war  has  ceased,  when  the  authority  of  the  Constitu- 
tion and  laws  of  the  United  States  have  been  restored  and  estab- 
lished, the  United  States  are  in  possession,  not  under  a  new  title  as 
conquerors,  but  under  their  old  title  as  the  lawful  Government  of 
the  country ;  that  title  has  been  vindicated,  not  by  the  destruction 
of  one  or  more  States,  but  by  their  preservation,  and  this  preserva- 
tion can  only  be  entered  into  by  the  restoration  of  republican  gov- 
ernments organized  in  harmony  with  the  Constitution."  * 

"  Conquest  of  a  foreign  country  gives  absolute  unlimited  sover- 
eign rights ;  but  no  nation  ever  makes  such  a  conquest  of  its  own 
territory.  If  a  hostile  power,  either  from  without  or  within,  takes 
and  holds  possession  and  dominion  over  any  portion  of  its  territory, 
and  the  nation  by  force  of  arms  expel  or  overthrow  the  enemy,  and 
suppress  hostilities,  it  acquires  no  new  title,  and  merely  regains  the 
possession  of  that  of  which  it  was  temporarily  deprived.  The  na- 
tion acquires  no  new  sovereignty,  but  merely  maintains  its  previous 
rights." 

"  When  the  United  States  take  possession  of  a  rebel  district,  they 
merely  vindicate  their  pre-existing  title.  Under  despotic  govern- 
ments, confiscation  may  be  unlimited ;  but/  under  our  Government, 
the  right  of  sovereignty  over  any  portion  of  a  State  is  given  and 
limited  by  the  Constitution,  and  will  be  the  same  after  the  war  as 
before."  7> 

Now,  in  regard  to  these  positions,  it  may  be  said  in 
the  first  place,  as  above  stated,  that  the  war  cannot  be 


RIGHT    OF    GOVERNMENT.  99 

said  to  be  ended,  and  the  authority  of  the  Constitution 

and  the  laws  to  be  restored  and  established,  so  long 

as  military  power  is  necessary  to  maintain  it,  as  is 

now  the  case  in  large  portions  of  the  Southern  States  : 

nor  while  such  restoration  is  merely  formal,  tempo-j 

rary,  or  insecure  ;  nor  until  it  shall  be  made  complete 

by  suitable  safeguards    prescribed   as   the   terms   of  ,  YCW*. 

L        /'        \   T\ 

peace  :    and   in   the   second  place,  as  before  shown, 
that  no  one  pretends  that  the  nature  of  our  Govern-    f*'  ' 
ment  would  allow  any  retention  of  the  territories  of  AV'J 


the  rebel  States  as  conquered  foreign  territory,  sub- 
ject to  despotic  authority  or  military  power  only,  if 
the  inhabitants  were  willing  to  return  to  their  alle- 
giance,  under  such  terms  as  justice  and  humanity,  and 
the  national  safety,  demand.  All  that  is  maintained 
is,  that.  untiL-sw?h  return  and  raatoratinn  T  the.  Gov- 
ernment has  full  right,  as  the  conqueror,  to  prescribe 
those  terms,  unlimited  by  any  provisions  contained 
in  the  Constitution  ;  /and  that  the  Constitution  can 
have  no  application  to  any  question  concerning  any 
rights  of  the  rebels  until  the  final  restoration  of  its 
authority  over  them)  upon  such  conditions  as  the 
Government  shall  have  imposed,  and  they  shall  have 
accepted. 

It  is  undoubtedly  true,  that  the  Government,  upon 
the  subjugation  of  the  armies  of  the  rebels  and  re- 
sumption of  possession  of  their  territories,  has  ac- 
quired no  new  title,  but  is  in  such  possession  by  vir- 
tue of  the  old  one.  And  the  result  would  be  the  same, 


100  RECONSTRUCTION. 

if.  instead  of  the  hostile  possession  taken  by  the  rebels, 
it  had  been  one  taken  by  a  foreign  invading  enemy. 
No  one  can  question,  that,  in  the  latter  case,  if  the 
invaders  were  so  numerous,  and  had  been  so  long  in 
possession,  as  to  render  their  expulsion  or  extermina- 
tion impossible,  the  Government  could  impose  upon 
them  such  terms  of  permanent  submission  to  its  au- 
thority, and  for  protection  of  its  loyal  subjects  there 
remaining,  as  it  should  think  proper.  And  upon 
what  principle  can  it  be  denied  that  the  Government 
has  the  like  right  in  reference  to  its  rebellious  citi- 
zens, who,  far  more  criminal  than  any  invaders  could 
have  been,  have  long  held  hostile  possession  of  these 
territories,  and  from  whom  securities  for  future  obe- 
dience to  the  Constitution  and  the  laws,  and  for  the 
protection  of  the  loyal  citizens  residing  among  them 
from  cruel  persecution,  are  demanded  alike  by  justice 
and  humanity,  and  the  national  safety  1 

And  if  it  be  true,  as  is  conceded,  that  the  United 
States,  upon  the  subjugation  of  the  rebellion,  "  are  in 
possession,  not  under  a  new  title,  as  conquerors,  but 
under  their  old  title  as  the  lawful  Government  of  the 
country,"  it  is  none  the  less  true  that  the  Govern- 
ment re-assumes  its  sway  over  citizens  whose  con- 
dition has  been  radically  changed  by  the  rebellion, 
and  with  powers  over  them  which  it  never  before  pos- 
sessed, (instead  of  loyal  subjects,  entitled  to  perfect 
immunity,  in  the  rights  of  property,  liberty,  and  life 
which  it  could  not  impair,  if  fin  Ha  then? 


RIGHT   OF    GOVERNMENT.  101 

who  have  forfeited  all  such  immunity})  and  who  stand 
liable  to  be  bereft  of  all  those  blessings  under  the 
laws  which  they  have  violated.  Nor  can  such  immu- 
nity be  restored  to  them,  but  by  its  pardoning  grace, 
and  upon  such  terms  of  submission  and  security  for 
future  good  behavior  as  its  sense  of  justice  and  of 
political  expediency  may  dictate.  And  it  is  not  per- 
ceived why,  upon  the  same  principles,  the  Government 
has  not  the  right  to  impose  the  like  terms  or  condi- 
tions of  restoration  to  their  former  political  rights 
and  privileges  in  the  councils  of  the  nation. 

The  soundness  of  a  theory  may  be  best  illustrated 
by  familiar  examples.  That  of  the  supposed  success 
of  England  in  subduing  the  colonies  in  the  war  of 
the  Revolution  has  been  already  adverted  to.  And 
if,  in  such  a  case,  she  would  have  had  the  constitu- 
tional right  (which  is  believed  to  be  undeniable)  of 
imposing  such  terms  and  conditions  of  restoration  to 
the  colonists,  of  their  former  political  rights  and 
privileges  under  their  charters,  as  her  Government 
might  have  considered  to  be  demanded  by  justice  and 
the  future  peace  and  security  of  the  empire,  what 
becomes  of  the  distinction  between  a  civil  and  a 
foreign  war  as  to  the  power  of  the  conqueror  to 
dictate  terms  Gf  peace  1 

But   a  still  more  satisfactory  illustration  may  be 

found  by  applying  the  theory  to  the   case  in  hand. 

(That  theory  is,  that,  in  subduing  the  rebellion,  the 

Government  of  the  United  States  can  only  act  right- 


102  RECONSTRUCTION. 

fully  within  the  limits  of  the  powers  conferred  ~by  the 
Constitution  ;  and  that  these  powers  are  confined  to  the 
restoration  of  the  authority  of  the  Constitution  and  laws 
of  the  United  States  in  the  rebel  States ;  and  therefore 
that  upon  the  laying-down  of  their  arms,  and  the 
proffered  and  apparent  submission  of  the  rebels  to 
such  authority,  they  became  instantly,  ipsis  factis, 
entitled  to  be  re-instated  in  all  their  former  political 
powers  and  privileges  as  States  in  the  Union;  and 
that  the  Government  has  no  right  to  interpose  any 
such  terms  or  conditions  of  such  re-instatement  as 
otherwise  might  be  obviously  reasonable  and  neces- 
sary for  the  future  peace  and  safety  of  the  nation, 
and  which  it  might  have  imposed  but  for  these  limits 
upon  its  power  affixed  by  the  Constitution.j 

Now,  this  theory  manifestly  involves  the  singular 
doctrine,  that  while  the  rebels  might  carry  on  the 
war,  and,  if  successful,  might  dictate  terms  of  peace 
without  any  limits  or  restraints,  but  those  of  the  law 
of  nations,  and  their  own  sense  of  justice  and  human- 
ity, —  "  Heaven  save  the  mark !  "  —  the  Government 
of  the  United  States  is  bound,  not  only  by  these  laws 
and  its  sense  of  right,  but  also  hand  and  foot  by 
the  iron  bands  of  the  Constitution,  crippling  its 
strength  in  the  combat,  and  laying  it,  even  in  vic- 
tory, at  the  feet  of  the  conquered,  for  them  to  assume 
its  powers,  and  enter  at  once  upon  the  administration 
of  its  authority. 

How  would  the  case  have  stood,  if  the  rebels  had 


RIGHT'  OF    GOVERNMENT.  103 

realized  their  hopeful  anticipations  of  laying  Phila- 
delphia, New  York,  and  Boston  in  ashes,  or  under 
contribution;  and  of  dictating  the  terms  of  peace 
and  of  the  future  relations  between  the  loyal  States 
and  the  newly  established  slave  empire,  which  was  to 
control  the  destinies  of  America  ? 

The  war  must  have  terminated,  of  course,  as  all 
wars  must,  by  a  treaty  of  peace  between  the  two 
Governments.  And  it  is  worth  while  to  contemplate 
for  a  moment  what  would  probably  have  been  the 
principal  terms  dictated  by  the  victorious  slave- 
holders. 

First,  There  would  have  been  the  condition  that 
nothing  should  be  contained  in  the  legislation  or 
jurisprudence  of  the  conquered  States  derogatory  to 
the  institution  of  slavery,  as  being  of  divine  origin, 
and  as  instinct  with  justice  and  humanity  towards  the 
black  man. 

Second,  That  all  the  black  men,  women,  and 
children  in  the  free  States,  who  had  ever  been  held 
in  slavery  in  the  slave  States,  and  had  escaped  or 
.gone  into  the  free  States  under  any  circumstances, 
and  the  descendants  of  any  residing  therein,  should 
be  immediately  .delivered  up  to  their  former  owners, 
or  their  legal  representatives ;  and  that  commission- 
ers, of  known  sympathy  with  the  institution,  should 
be  appointed  with  full  power  to  decide  all  questions 
arising  under  the  treaty,  and  to  deliver  up  such 
former  slaves  or  their  descendants,  if  any,  to  the 


104:  RECON  STRUCTlbN. 

claimants ;  and  to  call  in  the  aid  of  the  sheriffs  of 
their  counties,  with  their  posse  comitatus,  to  protect 
the  owner  in  possession  and  transportation  of  such 
slaves  out  of  the  free  States. 

Third,  That  the  citizens  of  the  Southern  empire 
should  have  the  right  at  all  times  to  carry  their  slaves 
into  the  free  States  and  the  territories  thereof,  and  use 
and  treat  them  there  in  the  same  manner  as  they 
were  accustomed  to  use  and  treat  them  in  their  own 
States,  and  to  hire  them  out  while  there,  free  from 
all  molestation  by  act  or  speech ;  and  that  any  such 
molestation  should  be  an  offence  punishable  by  laws 
to  be  enacted  for  the  purpose. 

Fourth,  That  a  law  should  be  enacted,  in  each 
of  the  free  States,  requiring  the  immediate  arrest  and 
imprisonment  of  any  slave  who  should  thereafter 
escape  from  a  slave  State  into  a  free  State,  by  any 
person  knowing  of  such  escape,  or  upon  complaint 
of  his  or  her  owner,  or  of  any  person  assuming  to 
act  in  his  or  her  behalf;  and  that  any  citizen  of  a 
free  State  who  should  knowingly,  or  with  reasonable 
cause  of  suspicion,  aid  or  abet  any  such  slave  in  so. 
escaping,  or  harbor  or  conceal  him  or  her,  or  give 
to  him  or  her  any  succor  or  relief  whatsoever,  or 
who  should  fail  to  render  aid  when  required  in  the 
recapture  and  restoration  of  such  slave,  should,  on 
conviction,  be  punished  by  a  fine,  say,  of  not  less 
than  a  thousand  dollars,  and  of  imprisonment  for  a 
term  not  less  than  five  years  for  the  first  offence,  of 


RIGHT    OF    GOVERNMENT.  105 

ten  years  for  the  second,  and  with  death  for  the 
third;  and  that  all  trials  for  any  such  offences 
should  be  before  commissioners  to  be  appointed  as 
aforesaid,  and  without  the  intervention  of  a  jury,  and 
without  appeal. 

Fifth,  That  the  United  States  should  pay  all  the 
expenses  incurred  by  the  Confederate  States  in  carry- 
ing on  the  war,  and  prescribed  pensions  to  the  fami- 
lies of  all  their  soldiers  who  had  died  in  consequence 
of  it. 

Sixth,  That  no  memorials  or  other  tributes  of 
honorable  remembrance  should  be  erected  in  any 
portion  of  the  free  States  of  those,  their  children, 
who  had  fallen  in  the  war. 

Seventh,  That  it  should  be  lawful  for  the  owner 
of  any  slave  escaping  from  either  of  the  Confederate 
States  into  either  of  the  United  States,  to  pursue  him 
in  the  territories  thereof,  and  retake  him  by  force  of 
arms,  if  necessary,  and  transport  him  to  the  owner's 
place  of  residence,  without  being  held  guilty  of  any 
violation  of  the  laws  of  neutrality,  or  of  the  laws  of 
the  State  thus  entered  upon;  and  that  no  fortresses 
or  fortifications  should  be  erected  by  the  United 
States  upon  the  lines  dividing  the  two  empires,  nor 
within  fifty  miles  thereof. 

No  one  can  reasonably  suppose  that  these  requisi- 
tions would,  in  any  degree,  have  transcended  those 
which  would  have  been  imposed  upon  the  people  of 

14 


106  RECONSTRUCTION. 

the  loyal  States,  if  they  had  been  as  effectually  sub- 
dued as  are  those  of  the  rebel  States. 

But  now  that  victory  has  perched  upon  the  stand- 
ard of  the  United  States,  and  absolute  power  is  in 
her  grasp  to  vindicate  the  majesty  of  her  outraged 
laws,  to  demand  indemnity  for  the  enormous  treasure 
expended  in  maintaining  her  authority  (none  being 
possible  for  the  infinitely  greater  loss  of  the  lives  of 
her  children),  and  to  require  security  for  her  peace 
and  safety  against  future  like  revolt,  or  political 
machinations  to  accomplish  the  same  ends,  —  all 
demanded  by  the  simplest  justice,  and  free  from  all 
taint  of  oppression,  —  we  are  coolly  told  that  the 
Constitution  prohibits  the  exercise  of  any  such  pow- 
ers ;  that  these  reasonable  demands  are  wholly  uncon- 
stitutional ;  that  all  which  the  Government  can 
lawfully  do  is  instantly  to  re-instate  these  still  unsub- 
dued though  conquered  enemies  in  all  their  former 
political  rights  and  privileges,  and  admit  them  into 
immediate  participation  in  the  administration  of  its 
authority. 

Upon  this  doctrine,  the  conclusion  is  obvious,  that, 
in  such  a  conflict,  the  traitors  are  at  all  times  mas- 
ters of  the  situation,  and  that,  if  defeated,  the  con- 
quered, and  not  the  conquerors,  dictate  the  terms  of 
peace. 

Another  logical  result  from  this  theory  is,  that  if, 
by  any  combination  of  circumstances,  the  inhabitants 
of  States  desirous  to  secede  should  obtain  command 


RIGHT    OF    GOVERNMENT.  107 

of  a  majority  in  both  houses  of  Congress,  either  by 
the  numbers  of  their  own  Senators  and  Representa- 
tives, or  by  combination  with  corrupt  members  mis- 
representing the  loyal  States,  or  otherwise  ;  and  upon 
an  attempt  to  exercise  their  political  power  in  de- 
stroying the  Union,  and  dismembering  the  Govern- 
ment, should  be  resisted  by  the  people  of  the  loyal 
States  by  force  of  arms,  and  be  effectually  subdued  in 
the  field,  as  they  now  have  been,  —  they  would  never- 
theless have  the  perfect  right,  upon  the  laying-down 
of  their  arms,  to  resume  their  places  in  the  national 
councils,  there  to  resume  their  nefarious  efforts,  and 
again  effect  their  purpose,  or  expose  the  nation  to 
the  horrors  of  civil  war;  and,  if  needful,  might 
repeat  the  iniquitous  game  until  the  people  of  the 
loyal  States,  exhausted  by  successive  conflicts,  or 
weary  of  the  strife  and  hopeless  of  repose,  should  be 
finally  compelled  to  submit. 

Such  are  the  clearly  inevitable  logical  results  of 
the  theory  which  the  President  has  adopted,  which 
he  is  pleased  to  style  his  policy,  and  which  he  pro- 
claims to  be  the  only  one  in  accordance  with  the 
Constitution ;  upon  which  he  seeks  to  replace  the  in- 
habitants of  the  rebel  States  in  immediate  possession 
of  their  previous  political  power  and  influence  in 
combination  with  their  former  allies  of  the  North- 
ern Democracy ;  and  by  which,  on  his  individual  re- 
sponsibility and  in  declared  opposition  to  the  will  of 
the  representatives  of  the  people,  he  is  perilling 


108  RECONSTRUCTION. 

the  present  tranquillity  and  future  safety  of  the 
country.  The  voice  of  an  indignant  people  has 
already  pronounced  its  condemnation,  with  an  em- 
phasis which  can  leave  no  doubt  either  of  its  merits 
or  of  its  fate. 


POWERS    OF   THE    PRESIDENT.  109 


CHAPTER   IV. 

ASSERTED  POWERS  OF  THE  PRESIDENT,  AS  THE  EXECUTIVE 
HEAD  OF  THE  GOVERNMENT  AND  AS  COMMANDER-IN- 
CHIEF,  TO  DECIDE  UPON  THE  RIGHTS  OF  THE  REBEL 
STATES  TO  IMMEDIATE  RESTORATION. 

IT  remains  only  to  consider  the  novel  and  remarka- 
ble construction  of  the  Constitution,  above  men- 
tioned, upon  which  the  President's  policy  is  attempted 
to  be  sustained  by  the  author  of  the  letter.  It  is 
thus  stated :  — 

"  The  question  whether  de  facto  governments  and  hostile  popula- 
tions have  been  completely  subdued  by  arms,  and  the  lawful 
authority  of  the  United  States  restored  and  re-established,  is  a 
military  and  executive  question.  It  does  not  require  legislative 
action  to  ascertain  the  necessary  facts ;  and,  from  the  nature  of  the 
case,  legislative  action  cannot  change  or  materially  affect  them.  As 
commander-in-chief  of  the  army  and  navy,  and  as  the  chief  execu- 
tive officer  whose  constitutional  duty  it  is  to  see  that  the  laws  are 
faithfully  executed,  it  is  the  official  duty  of  the  President  to  know 
whether  a  rebellion  has  been  suppressed,  and  whether  the  authority 
of  the  Constitution  and  laws  of  the  United  States  has  been  com- 
pletely restored  and  firmly  established.  The  mere  organization  of  a 
republican  government  in  harmony  with  the  Union,  by  the  people  of 
one  of  the  existing  States  of  the  United  States,  requires  no  enabling 
act  of  Congress,  and  I  can  find  no  authority  in  the  Constitution  for 
any  interference  by  Congress  to  prohibit  or  regulate  the  organization 
of  such  a  government  by  the  people  of  an  existing  State  of  the 
Union:  on  the  other  hand,  it  is  clearly  necessary  that  the  President 
should  act  so  far  at  least  as  to  remove  out  of  the  way  military 


110  RECONSTRUCTION. 

restrictions  on  the  power  of  the  people  to  assemble  and  do  those 
acts  which  are  necessary  to  re-organize  their  government.  This  I 
think  he  was  bound  to  do  as  soon  as  he  became  satisfied  that  the 
right  time  had  come." 

It  would  be  difficult  to  exaggerate  the  alarming 
and  dangerous  nature  of  this  doctrine,  if  it  could  be 
successfully  maintained.  It  might  well  startle  the 
nation  to  find  that  the  power  of  final  decision  upon 
the  relations  subsisting  between  the  inhabitants  of 
the  rebel  States  and  the  national  Government,  and 
between  them  and  the  other  States  in  the  Union, 
growing  out  of  such  a  gigantic  civil  war  as  that 
through  which  we  are  passing,  and  the  adjustment 
of  which  relations  must  vitally  affect  the  nature,  the 
safety,  and  the  strength  of  that  Government  for  ages 
to  come,  if  not  for  ever,  rests  wholly  in  one  indi- 
vidual ;  and  that  the  representatives  of  the  people 
are  voiceless  and  powerless  to  control  or  affect  it. 

No  one  can  believe  that  power  of  such  tremendous 
import  would  ever  have  been  intentionally  vested  in 
the  executive  head  of  the  Government  alone,  by  the 
framers  of  the  Constitution,  if  the  exigency  had  been 
foreseen.  No  one  will  believe  that  it  would  have 
been  conferred  by  the  people  even  upon  a  Washing- 
ton or  a  Lincoln,  or  that  either  of  them  would 
voluntarily  have  assumed  it.  It  is  a  power  from 
which  it  would  seem  that  any  man,  the  most  reckless 
of  responsibility,  would  naturally  shrink,  if  having 
only  his  country's  good  at  heart;  gladly  turning  for 


POWERS    OF    THE   PRESIDENT.  Ill 

advice  and  assistance  to  the  representative  agents  of 
the  people,  instead  of  repelling  them  with  vitupera- 
tion and  insult  for  questioning  his  supremacy. 

The  first  obvious  comment  to  be  made  upon  this 
theory  is,  that  it  rests  entirely  upon  the  assumption, 
or  the  hypothesis  attempted  to  be  maintained  in  the 
former  part  of  the  letter,  that  the  people  of  the 
rebel  States,  upon  outward  submission  to  the  author- 
ity of  the  Constitution  and  the  laws  of  the  United 
States,  became  instantly  entitled  to  the  restoration  of 
their  former  political  powers  and  privileges  in  the 
Union ;  and  that  the  Government  was  prohibited  or 
disabled  by  the  Constitution  from  exacting  any  indem- 
nity, or  requiring  any  security  for  their  future 
continued  obedience,  or  any  guarantees  for  the  peace 
and  safety  of  the  nation,  however  reasonable  or  just 
such  demands  might  otherwise  be  considered.  It 
merely  transfers  the  right  of  decision  of  the  question 
of  such  submission  from  the  General  Government 
to  the  Executive  Department  alone.  If,  therefore, 
that  hypothesis  is  unsound,  —  as  it  is  believed  most 
clearly  to  be,  as  above  shown,  —  this  new  theory  of 
construction  of  course  falls  to  the  ground  with  it. 
For  the  most  extreme  defender  of  the  President's 
policy  would  not  venture  to  affirm,  that,  if  any  terms, 
conditions,  or  guarantees  could  be  lawfully  demanded, 
he  would  have  any  right  or  power  to  determine  their 
nature  or  extent. 

Before  proceeding  to  consider  the  various  reasons 


112  RECONSTRUCTION. 

which  are  believed  sufficient  to  prove  this  theory  to 
be  wholly  untenable,  it  is  necessary  to  have  a  clear 
and  distinct  understanding  of  the  two  elements  or 
principles  upon  which  alone  it  is  made  to  rest; 
namely,  the  executive  power  and  the  military  power 
of  the  President.  These  two  powers,  although  often, 
as  in  this  case,  confounded  together,  as  jointly  con- 
ferring authority  which  neither  singly  could  give,  are 
totally  distinct  and  independent,  and  are  utterly  unsus- 
ceptible of  any  fusion  or  commingling,  so  as  to  pro- 
duce a  result  which  neither  could  alone  effect.  And, 
if  the  authority  claimed  for  the  President  cannot  be 
deduced  from  either  taken  singly,  it  cannot  be  from 
the  two  combined.  Two  ciphers  cannot  make  a  unit 
nor  can  any  multiplication  of  them. 

Now,  nothing  in  political  science  or  language,  and 
nothing  indeed  in  common  conversation,  is  better 
defined  or  more  universally  recognized  than  the 
meaning  of  the  term  "  executive "  as  applied  to 
government.  Every  one  knows  that  it  is  descriptive 
of  the  head  of  the  civil  Government,  who  executes  the 
laws,  as  distinguished  from  the  legislature  which 
enacts  them,  and  the  judiciary  which  applies  them ; 
and  that  it  designates  an  exclusively  civil  power  for 
the  execution  of  civil  laws.  It  is  equally  clear  and 
universally  known,  that  military  officers  form  no  part 
of  the  government,  but  are  its  instruments  only  for 
especial  purposes,  and  are  never  termed  "  the  Execu- 
tive "  nor  "  executive  officers ; "  and  that  military 


POWERS    OF    THE    PRESIDENT.  113 

authority  is  no  constituent  part  of  the  Government, 
but  merely  an  agency  by  which  it  discharges  certain 
of  its  duties  or  functions.  The  term  "  executive  "  is 
a  correlative  term,  always  used  in  correlation  to 
"judicial"  and  "legislative,"  and  never  as  having  any 
reference  to  military  authority.  All  dictionaries  and 
encyclopaedias,  as  well  as  common  usage,  are  perfectly 
co-incident  on  this  point. 

It  is  true,  that  the  Constitution  (Art.  II.,  Sec.  1), 
after  providing  that  "  the  executive  power  shall  be 
vested  in  the  President  of  the  United  States  of  Amer- 
ica," and  prescribing  the  manner  of  his  election, 
qualifications,  &c.,  provides  in  another  section  (Sec. 
2)  that  "  the  President  shall  be  commander-in-chief 
of  the  army  and  navy  of  the  United  States,  and  of 
the  militia  of  the  several  States  when  called  into 
the  actual  service  of  the  United  States."  But  this 
neither  creates  nor  implies  any  expansion  of  his 
"  executive  power,"  but  is  merely  the  annexation 
to  his  civil  office  of  another  entirely  distinct  and  dif- 
ferent one.  There  was  no  necessity,  in  the  nature  of 
things,  for  investing  him  with  this  military  authority 
as  part  of  his  powers  as  the  head  of  the  civil  Govern- 
ment. And  if  the  Constitution  had  provided  that  the 
commander-in-chief  should  be  any  other  person,  and 
appointed  in  any  other  manner,  it  would  have  dero- 
gated nothing  from  the  President's  executive  suprem- 
acy ;  nor  can  such  addition  of  military  to  executive 
authority  render  acts  done  under  it  executive  acts, 

15 


114  RECON  STRU  CTION. 

any  more  than  would  the  investment  of  the  Chief 
Justice  with  the  command  of  the  army  and  navy  ren- 
der his  military  acts  judicial  ones,  or  vice  versa.  In 
his  military  capacity,  therefore,  the  President  is  the 
mere  servant  or  agent  of  the  civil  or  political  Govern- 
ment, and  bound  by  its  action  as  entirely  as  would  be 
General  Grant,  or  any  other  person,  if  he  had  been 
appointed  such  commander-in-chief.  He  has  no  right, 
as  such  commander,  to  declare  war  or  make  peace, 
nor  decide  any  question  affecting  the  political  rela- 
tions between  the  States  and  the  General  Government. 
If  the  Congress  declare  war,  whether  civil  or  foreign, 
he  is,  as  commander-in-chief,  bound  by  its  behests  to 
use  the  military  and  naval  forces  of  the  nation  for 
the  subduing  of  the  enemy,  and  has  no  further  au- 
thority than  to  command  them  for  that  purpose.  And 
as  he  has  no  power,  as  such  commander,  to  declare  war, 
so  neither,  as  such,  has  he  power  to  declare  the 
war  ended,  however  entire  may  be  the  subjugation  of 
the  enemy  in  his  opinion,  if  the  civil  Government 
shall  determine  otherwise  and  direct  its  further  pros- 
ecution. Still  less  has  he  any  power,  as  such  com- 
mander, to  dictate  or  agree  upon  terms  of  peace,  or  to 
exonerate  the  conquered  from  submission  to  any  such 
terms  as  the  civil  Government  may  see  fit  to  impose. 
This  principle  was  signally  asserted  and  acted  upon 
in  the  surrender  by  General  Johnston  of  his  forces  to 
General  Sherman,  and  no  one  ever  questioned  the 
soundness  of  that  decision.  And,  if  possible,  it  is  still 


POWERS    OF    THE   PRESIDENT.  115 

more  clear  and  certain  that  he  has  no  power,  as  such 
commander,  to  decide  upon  or  adjust  any  political 
relations  created  by  the  rebellion  between  the  rebels 
and  the  General  Government,  or  to  define  or  determine 
what  may  be  the  legal  and  political  consequences  of 
their  treason.  .'•'• 

Nor  is  the  power  of  the  President,  as  the  executive 
head  of  the  nation,  less  strictly  a  limited  power. 
With  regard  to  foreign  relations,  he  can  make  treaties, 
appoint  ambassadors  or  other  ministers  and  consuls, 
only  by  and  with  the  advice  and  consent  of  the  Sen- 
ate. His  only  individual  authority,  indeed,  in  regard 
to  such  relations,  seems  to  be  the  unavoidable  one  of 
receiving  ambassadors  and  other  public  ministers. 
His  powers  are,  in  truth,  far  less  than  those  with  which 
the  executive  departments  under  other  forms  of  gov- 
ernment are  usually  invested.  They  ordinarily  have 
those  of  declaring  war  and  making  peace ;  whereas, 
by  the  Constitution,  Congress  alone  is  authorized  to 
declare  war,  and  a  treaty  of  peace  can  only  be  con- 
cluded by  the  President  with  the  advice  and  consent 
of  the  Senate.  As  the  executive  head  of  the  nation, 
he,  of  course,  primarily  represents  the  Government 
in  its  relations  to  the  Governments  of  foreign  nations, 
and  in  all  negotiations  with  them,  and  may  thus 
exercise  a  vast  influence  upon  its  prosperity  and 
destiny.  But  he  has  no  power  of  decision  upon  the 
great  questions  of  international  obligation,  and  peace 
and  war,  upon  which  they  may  chiefly  depend. 


116  RECONSTRUCTION. 

So,  in  the  administration  of  the  internal  affairs  of 
the  country,  his  powers  are  confined  to  the  appoint- 
ment of  certain  judicial  and  other  officers  by  and 
with  the  consent  of  the  Senate,  and  to  taking  "  care 
that  the  laws  be  faithfully  executed."  He  can  neither 
make  laws  nor  decide  finally  upon  any  question 
arising  under  those  duly  enacted.  In  political  ques- 
tions involving  the  legal  relations  of  citizens  or  of 
the  States  to  the  Government,  he  is  subject  to  the  civil 
Government,  which  alone  has  power  to  decide  them. 
And  in  judicial  questions  he  is  subject  to  the  judi- 
ciary. 

No  principle  of  public  law  is  more  undeniable  or 
more  universally  recognized,  than  that  the  decision  of 
all  the  possible  legal  relations  of  the  citizen  to  the 
Government,  individually  or  politically,  are  primarily 
within  the  sole  and  exclusive  jurisdiction  and  rule  of 
the  political  or  legislative  department  of  it;  and  are 
never,  under  any  circumstances,  within  the  scope  of 
the  executive  or  of  the  military  power,  excepting 
when  invoked  for  enforcement  of  the  laws  concerning 
them.  And  nothing  can  be  clearer  than  that  any  ques- 
tions concerning  the  relations  created  by  the  Consti- 
tution between  the  people  of  the  several  States,  or  the 
States  in  their  corporate  capacities,  and  the  Govern- 
ment of  the  United  States ;  or  between  the  individual 
States  and  the  other  States  in  the  Union,  as  those 
relations  existed  before  the  rebellion  ;  and  concerning 
any  changes  or  effects  upon  such  relations,  caused  by 


POWERS    OF    THE    PRESIDENT.  117 

the  rebellion ;  and  concerning  the  right  and  power 
of  the  Government  to  exact  indemnity  of  the  rebel 
States,  and  to  impose  terms  or  conditions  of  resto- 
ration to  their  former  political  powers  and  privileges, 
—  are  purely  questions  of  constitutional  law,  of  which 
the  political  or  legislative  department  of  the  Govern- 
ment has  primarily  exclusive  jurisdiction.  And  no 
more  flagrantly  unconstitutional  usurpation  of  au- 
thority can  be  conceived  of,  than  for  the  President,  as 
the  executive  head  of  the  Government,  or  as  the 
commander-in-chief  of  the  army  and  navy,  to  assume 
the  right  of  deciding  upon  them  as  pertaining  to  him 
in  either  of  those  capacities.  Cases  doubtless  may 
arise,  in  which  it  may  be  impossible  seasonably  to 
determine  to  which  branch  of  the  Government  a  ques- 
tion demanding  immediate  decision  may  belong; 
and,  in  such  case,  an  executive  officer  may  be  justi- 
fiable in  deciding  it  upon  his  own  responsibility.  But 
where  no  reasonable  doubt  can  exist,  that  it  is  one, 
the  decision  of  which  pertains  exclusively  to  the  po- 
litical department  of  the  Government,  he  can  have  no 
justification  in  acting  upon  it  in  opposition  to  the 
decision  of  that  department,  however  clear  may  be 
his  conviction  that  such  decision  is  erroneous  and 
unwarranted  by  a  true  construction  of  the  Consti- 
tution. The  responsibility  rests  wholly  upon  that 
department,  and  in  no  degree  upon  him.  He  might 
with  equal  propriety  exert  his  executive  or  military 
power  to  reverse  a  judgment  of  the  Supreme  Court, 


118  RECONSTRUCTION. 

and  substitute  his  sense  of  justice  in  place  of  it,  as 
thus  to  infringe  upon  and  oppose  the  jurisdiction  of 
the  General  Government. 

Again,  during  and  upon  the  termination  of  the  re- 
bellion, the  people  of  the  rebel  States,  as  has  been 
shown,  and  as  is  conceded  in  this  letter,  were  utterly 
disorganized,  and  without  governments  which  could 
entitle  them  to  political  rights  as  States  in  the  Union ; 
and  could  only  be  re-organized  as  such  States  by  the 
consent  of  the  Government  of  the  United  States,  on  its 
determination  that  the  proper  time  for  such  re-organ- 
ization had  come,  and  of  which  the  Government  is 
confessedly  the  sole  judge. 

But  it  is  obvious,  that,  in  deciding  upon  the  right  of 
such  restoration  and  the  reception  of  the  representa- 
tives of  such  State  into  the  councils  of  the  nation, 
the  essential  preliminary  question  must  be  decided, 
whether  the  Government  thus  organized  is  a  republi- 
can form  of  government,  and  otherwise  in  harmony 
with  the  requisitions  of  the  Constitution.  And  it  is 
equally  clear,  that  any  such  question  is  not  only,  in  its 
nature,  purely  political,  but  that  the  decision  of  it  is, 
by  the  express  terms  of  the  Constitution,  delegated 
exclusively  to  Congress.  Upon  what  principle,  then, 
can  it  be  contended  that  the  President  alone,  as  the 
executive  head  of  the  Government  or  as  commander- 
in-chief  of  its  forces,  is  authorized  definitely  to  settle 
that  question,  and  to  recognize  the  rebel  States  as  en- 
titled to  all  their  political  rights  and  privileges,  as, 


POWERS    OF    THE    PRESIDENT.  119 

upon  this  theory  in  question,  he  is  entitled  to  do? 
Can  a  more  palpable  substitution  of  military  or  exec- 
utive authority,  in  place  of  the  political  authority 
established  by  the  Constitution,  be  conceived  of?  It 
is  said,  indeed,  that  — 

"  The  mere  organization  of  a  republican  Government  in  harmony 
with  the  Union  of  a  people  of  one  of  the  existing  States  of  the  United 
States  requires  no  enabling  act,  and  that  no  authority  is  found  in 
the  Constitution  for  any  interference  by  Congress  to  prohibit  or 
regulate  the  organization  of  such  a  government  by  the  people  of  an 
existing  State  in  the  Union." 

But  all  this,  if  true,  would  not  meet  the  difficulty. 
Although  no  previous  enabling  act  may  be  required 
to  authorize  such  organization,  the  subsequent  duty 
and  necessity  of  passing  judgment  upon  the  question 
whether  it  be  a  republican  form  of  government,  and 
otherwise  in  harmony  with  the  Constitution,  will 
nevertheless  inevitably  arise  ;  and  that  duty  must,  as 
above  shown,  devolve  upon  Congress  alone.  But  the 
proposition  is  believed  to  be  fallacious,  in  assuming 
that  the  people  of  a  State,  which  has  thus  destroyed 
its  political  relations  to  the  Union,  can,  before  its 
re-admission  to  the  Union  by  the  authority  of  the 
Government,  be  accounted  with  any  propriety  as  "  one 
of  the  existing  States  of  the  United  States,"  or  "  an 
existing  State  in  the  Union,"  under  the  Constitution. 

Another  and  fatal  objection,  as  is  believed,  to  this 
theory,  is  found  in  the  consideration  that  it  is  based 
entirely  upon  the  assumption  that  the  recent  civil  war 


120  RECONSTRUCTION. 

is  to  be  accounted  merely  as  an  insurrection  or  rebel- 
lion, which  the  executive  head  of  the  Government  was 
competent  to  deal  with  in  determining  its  nature  and 
extent  and  its  termination.  Now,  to  confound  a  civil 
war  of  the  gigantic  proportions  of  that  from  which  the 
United  States  is  emerging,  in  which  the  people  of 
eleven  States  inhabiting  and  holding  in  hostile  array 
about  one-half  of  the  territory  of  the  United  States, 
organized  themselves  into  a  distinct  and  separate 
Government,  claiming  to  be  an  independent  sover- 
eignty, and  endeavored  by  a  war  of  four  years  in 
duration,  by  land  and  by  sea,  to  establish  themselves 
as  an  independent  nationality, —  and  to  which  de  facto 
government  belligerent  rights  were  accorded  by  foreign 
nations  and  the  Government  of  the  United  States,  and 
were  recognized  by  all  its  courts  of  justice  and  in  its 
foreign  diplomacy,  —  to  confound  such  a  war  with  a 
mere  insurrection  for  a  redress  of  grievances,  or  other 
causes,  against  a  government  whose  general  authority 
was  acknowledged,  and  whose  nationality  it  was  not 
its  purpose  to  destroy,  and  which  involved  the  neces- 
sity of  nothing  more  than  the  exercise  of  ordinary 
executive  authority  to  subdue,  —  seems,  to  say  the  least, 
strangely  unreasonable,  and  to  furnish  no  foundation 
for  any  sound  conclusions. 

The  war  was  in  fact,  in  every  sense,  a  territorial 
war  between  two  powerful  governments,  contending, 
one  for  national  life  and  the  other  for  the  establish- 
ment of  an  empire ;  calling  forth  all  the  resources  of 


POWERS    OF    THE   PRESIDENT.  121 

the  national  Government  which  the  most  exigent 
foreign  war  could  put  in  requisition  ;  involving  it  in 
all  the  external  political  relations  with  other  nations 
which  any  war  could  create ;  and  shaking  to  their 
deepest  foundations  all  the  internal  political  relations 
of  the  people,  and  of  the  loyal  and  of  the  rebel  States 
to  the  Government  and  the  Union.  A  war  in  which 
the  executive  head  of  the  Government,  in  the  mere 
exercise  of  executive  authority,  would  have  been  ut- 
terly powerless  and  helpless.  A  war  not  contemplated 
nor  provided  for  by  the  Constitution,  perilling  the  life 
of  the  nation,  and  throwing  it  back,  in  self-defence, 
upon  the  original  principles  of  self-preservation. 

It  was  a  war  formally  declared  by  the  Confederate 
Government  with  all  the  solemnities  of  a  declaration  by 
a  foreign  nation,  and  was  finally  recognized  by  an  act 
of  Congress,  in  a  statute  held  by  the  Supreme  Court 
to  be  equivalent  to  a  formal  declaration  of  war  by 
that  of  the  United  States ;  and  until  which  act,  a 
respectable  minority  of  the  judges  of  the  Supreme 
Court  held  that  the  President  was  not  justifiable 
in  the  exercise  of  belligerent  rights  affecting  foreign 
nations.  It  had  therefore  every  possible  element  of 
a  foreign  war,  recognized  by  the  political  and  judi- 
ciary departments  of  the  Government,  all  whose 
powers  were  invoked  in  its  support. 

To  maintain  that  the  executive  head  of  the  Govern- 
ment, by  virtue  of  his  office,  has  sole  authority  to  de- 
termine upon  the  termination  of  such  a  war,  and 

16 


122  RECONSTRUCTION. 

finally  to  decide  upon  its  consequences  upon  the 
political  relations  of  the  parties  to  it,  and  the  terms  of 
peace,  all  which  is  necessarily  involved  in  this  theory, 
—  and  equally  so  whether  he  undertakes  to  dictate 
terms  of  peace,  or  to  decide  that  none  can  be  constitu- 
tionally demanded  —  seems  to  vest  in  the  President  a 
stretch  of  executive  authority  utterly  abhorrent  from 
any  rational  construction  of  the  Constitution,  or  any 
conceivable  theory  of  representative  government. 

A  state  of  war  can  only  be  terminated  by  a  treaty  of 
peace,  express  or  implied.     Usually  between  foreign 
nations,  formal  written  stipulations  are  executed,  and 
determine  the  time   and  conditions   of  its  cessation. 
Where  unconditional    submission  has  been  exacted, 
the  rights  'of  war  continue  on  the  part  of  the  victor, 
until  he  has  pronounced  upon  the  future  political  con- 
dition of  the  conquered  ;  and  that,  if  unresisted,  consti- 
tutes the   final  treaty  of  peace.     So  here  the  war, 
declared  by  Congress,  —  which  alone  has  the  power  to 
declare  war,  —  can  only  cease  when  the  terms  of  peace 
t  shall  have  been  finally  resolved  upon  ;  and,  until  then, 
the  rebels  are  under  the  military  authority  of  the  Gov- 
ernment, excepting  in  so  far  as  it  may  see  fit  to  relieve 
them  from  the  immediate  exercise  of  such  authority, 
during  its  pleasure.   But  peace  will  not  have  terminated 
the  war,  until  it  shall  have  been  decided  on  what  terms 
the  rebel  States  shall  be  restored  to  the  Union,  or  that 
no  terms  can  or  shall  be  exacted.     And  that  decision 
cannot  rest  with  the  Executive.     In  the   case  of  a 


POWERS    OF    THE    PRESIDENT.  123 

foreign  war,  it  would  be  the  duty  of  the  Senate,  acting 
in  concert  with  the  Executive,  to  determine  on  what 
terms  the  war  should  cease,  or,  in  other  words,  when 
and  how  peace  should  be  made.  But  in  a  civil  war 
like  this,  where  the  fundamental  relations  of  the  people 
of  the  rebel  States  to  the  Constitution  and  the  laws  are 
involved,  it  is  plain  that  the  only  departments  which 
have  cognizance  of  them,  or  can  decide  them,  are  the 
political  or  judiciary  departments.  The  idea  that  the 
commander-in-chief  of  the  forces  of  a  Government, 
acting  merely  as  such,  can  decide  the  question  when  a 
war  declared  by  the  authority  of  Congress  has  ended, 
and  its  purposes  have  been  accomplished,  is  too  absurd 
to  require  refutation.  He  is  the  mere  servant  or 
instrument  of  the  Government  in  carrying  on  the  war  ; 
and  must  prosecute  it,  and  continue  the  exercise  of 
military  authority  against  and  over  the  enemy,  whatever 
may  be  his  individual  opinion,  until  the  Goverment 
decide  the  war  to  be  ended  by  agreeing  upon  terms  of 
peace.  Nor,  upon  examination,  is  the  idea  that  the 
Executive  Department  of  the  Government  can  decide 
such  a  question  in  the  case  of  a  war  like  this  any  more 
tenable,  it  having  been  shown  that  such  decision 
necessarily  involves  the  determination  of  many  other 
questions  purely  political  and  constitutional,  of  which 
the  Executive  Department  has  no  jurisdiction. 

In  conclusion,  whatever  questions  might  be  raised 
concerning  the  powers  of  Congress,  or  of  the  Exec- 
utive in  ordinary  cases  of  insurrection,  it  is  believed 


124  RECONSTRUCTION. 

that  in  the  case  of  a  war  declared  by  Congress,  which 
alone  has  the  power  to  declare  war,  and  which  power 
is  not  limited  by  the  Constitution  to  a  foreign,  but 
applies,  with  equal  reason,  to  a  civil  Avar  of  a  magni- 
tude to  require  its  interposition,  —  and  in  view  of  the 
unusual  restraints  imposed  by  the  Constitution  of  the 
United  States  upon  the  Executive  in  relation  to  all 
matters  of  peace  and  war,  —  it  is  believed  that  no  rea- 
sonable doubt  can  exist,  that  the  President  has  no 
authority  whatever  to  decide  upon  the  terms  or  condi- 
tions of  peace,  or  upon  those  of  the  restoration  of  the 
belligerents  subdued  by  force  of  arms  to  their  former 
political  rights  and  privileges  in  the  Union. 

Many  other  arguments  might  be  adduced  in  support 
of  the  authority  claimed  by  Congress,  and  there  are 
/  doubtless  others  in  defence  of  the  President's  policy 
which  have  not  been  particularly  noticed  in  the  pre- 
ceding remarks. 

It  is  believed,  however,  that  the  main  points  on 
both  sides  have  been  considered  as  fully  as  the  nature 
of  a  publication  of  this  sort  will  permit,  and  that  they 
embrace  in  substance  the  merits  of  the  question  before 
the  country.  The  author  is  conscious  that  there  is  a 
limit  to  the  patience  of  readers,  and  beyond  which  he 
has  great  apprehension  that  he  has  already  trans- 
gressed. 

He  cannot,  however,  leave  the  subject  without 
adverting  to  a  possible  misapprehension  of  his  views 
upon  the  importance  and  sacredness  of  the  rights  of 


POWERS    OF    THE   PRESIDENT.  125 

the  States  under  the  Constitution,  which  might  arise 
from  the  nature  of  the  discussion  which  has  been, 
attempted.  It  will  be  observed,  that  his  only  object 
has  been  to  vindicate  the  sovereignty  of  the  General 
Government  against  the  assaults  made  upon  it  by 
advocates  of  the  rights  of  inhabitants  of  States  who 
had  renounced  allegiance  to  it,  and  had  engaged  in 
civil  war  for  its  overthrow ;  and  consequently,  that 
the  discussion  has  been  almost  exclusively  con- 
fined to  consideration  of  the  relations  of  the  States 
to  the  General  Government  in  that  aspect  only,  and 
of  the  subordination  and  limitations  of  State  sov- 
ereignty rather  than  of  its  attributes.  But  no  one 
can  be  more  profoundly  impressed,  than  he  believes 
himself  to  be,  with  the  essential  importance  and  in- 
violability of  the  rights  intended  to  be  secured  to  the 
several  States  under  the  Constitution.  He  accounts 
their  individual  sovereignty  and  independence  over  the 
domestic  relations  and  municipal  law,  and  in  the 
internal  governments  of  their  respective  inhabitants, 
as  the  very  foundation  stones  of  the  national  Govern- 
ment. The  preservation  of  this  sovereignty  and 
independence,  to  the  fullest  extent  warranted  by  the 
Constitution,  he  considers  to  be  chief  among- the  fun 
damental  principles  of  American  statesmanship  ;  as  the 
only  means  possible  of  maintaining  a  free  and  ener- 
getic government  over  territories  of  extent  so  vast  as 
those  already  comprised  within  our  national  bounda- 
ries ;  as  the  safest  barrier  against  attempt  at  Executive 


126  RECONSTRUCTION. 

usurpation ;  as  the  main  bulwark  against  the  natural 
tendency  of  the  General  Government,  as  of  all  oth- 
ers, to  consolidation  and  centralization  of  its  author- 
ity ;  and  which,  not  thus  controlled,  attaining  at  first  to 
the  exercise  of  arbitrary  power  by  the  many,  would, 
as  all  history  prophesies,  eventually  terminate  in 
practical  despotism;  and,  above  all,  as  the  sufficient 
and  only  instrumentality  for  educating  and  disciplining 
successive  generations  in  the  knowledge  and  practice 
of  political  rights  and  duties,  by  which  alone  they 
can  be  made  capable  of  self-government. 

And  no  one  will  hail  with  profounder  gladness  a 
just  perception  on  the  part  of  the  inhabitants  of  the 
rebel  States  of  their  true  relations  to  the  Govern- 
ment, and  their  return  to  their  constitutional  places 
in  the  Union  which,  unhappily  for  us  all,  they  have 
made  vacant. 


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Patent  Applied  Fo- 


001210154    9 


